Duty to the Court: Rules 1 to 10

The second sentence is absolute and needs no proof of any improper purpose. A private communication about a pending case is forbidden even if what is said is true and harmless.

The first sentence is the rule behind the gravest cases in Module III. In Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509, an advocate wrote to his client that the judge accepted bribes and asked for ten thousand rupees to get the suit decided in the client's favour, and his name was ordered to be struck off the roll. In Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, the Supreme Court said there is a long line of decisions laying down that offering or giving a bribe, or taking money from a client for the purpose of giving a bribe, amounts to grave professional misconduct.

Rule 4: restraining the client, and refusing him

"An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the court, opposing counsel or parties which the advocate himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouth-piece of the client, and shall exercise his own judgement in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in court."

This is the longest and most important rule in the Section, and it contains four separate obligations.

• Restrain and prevent the client from sharp or unfair practices.
• Refuse to represent a client who persists. Note that this is mandatory: "shall refuse".
• Not a mere mouth-piece. The advocate exercises his own judgement.
• Restrained language in three named places: correspondence, pleadings and oral argument.

Rule 4 is the answer to the commonest question a first-year student asks, which is what to do when the client instructs something improper.

Rule 5: dress

"An advocate shall appear in court at all times only in the prescribed dress, and his appearance shall always be presentable."

The prescribed dress is prescribed by the Bar Council of India's rules in another Chapter and by the rules of the court concerned. Rule 5 is the hook that makes wearing it a matter of professional conduct.

Rule 6: relations on the Bench

"An advocate shall not enter appearance, act, plead or practise in any way before a court, Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is related to the advocate as father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law."

The list has twenty relations and it is worth reading once carefully, because the rule is absolute for anyone on it and does not apply to anyone off it. An explanation adds that for the purposes of this rule, court means a court, Bench or Tribunal in which the named relation of the advocate is a Judge, Member or Presiding Officer.

Two points. It bites on the relationship, not on the case: there is no exception for a matter in which the relation takes no part. And it uses the four verbs "enter appearance, act, plead or practise in any way", so it is not confined to arguing.

Rule 7: bands and gown outside court

"An advocate shall not wear bands or gown in public places other than in courts except on such ceremonial occasions and at such places as the Bar Council of India or the court may prescribe."

A rule of etiquette, and its point is that court dress is not a badge to be worn in the street.

Rule 8: appearing for a body he helps run

"An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation, if he is a member of the Executive Committee of such organisation or institution or society or corporation."

"Executive Committee", by whatever name called, includes any committee or body of persons which for the time being is vested with the general management of the affairs of the body.

The proviso is important and is often missed: the rule does not apply to such a member appearing as amicus curiae, or without a fee on behalf of a Bar Council, Incorporated Law Society or Bar Association.

Rule 9: pecuniary interest

"An Advocate should not act or plead in any matter in which he is himself pecuniarily interested."

The rule carries two illustrations of its own: he should not act in a bankruptcy petition when he is himself a creditor of the bankrupt, and he should not accept a brief from a company of which he is a Director.

Note that rule 9 is in Section I and is therefore a duty to the court, while the closely related rules 22 and 22A about buying the property in dispute are in Section II and are duties to the client. The difference is that a pecuniarily interested advocate misleads the court about the disinterestedness of the person addressing it.

Rule 10: surety

"An Advocate shall not stand as a surety, or certify the soundness of a surety for his client required for the purpose of any legal proceedings."

Short and absolute. An advocate who stands surety for his own client puts himself in a position where his personal financial interest turns on the outcome, and where the court is relying on his certificate about a matter in which he is not independent.

The rules and the law of contempt

Rules 1 to 4 overlap with the law of contempt, which is Module IV, and the relationship should be stated once.

They are different jurisdictions. A breach of rules 1 to 4 is dealt with by a disciplinary committee under section 35. A contempt is dealt with by the court under the Contempt of Courts Act 1971 and Articles 129 and 215.

One act can be both. An outburst in court can be criminal contempt under section 2(c) and professional misconduct under section 35, and neither proceeding excludes the other.

But one body cannot do the other's job. In Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, a Constitution Bench held that the Supreme Court, while punishing an advocate for contempt, cannot suspend his licence to practise, because that disciplinary jurisdiction is conferred by the Advocates Act on the Bar Councils.

A worked example

Meera appears for a landlord before a Rent Court. Six things happen.

Her client asks her to meet the presiding officer at a wedding and mention the case. Forbidden by rule 3, second sentence, absolutely. She must also, under rule 4, use her best efforts to restrain him.

The client says he will approach the officer himself if she will not. Under rule 4 she must refuse to represent a client who persists in such improper conduct. The word in the rule is "shall".

She discovers the presiding officer is her husband's brother. That is brother-in-law, which is on the rule 6 list. She may not enter appearance, act, plead or practise in any way before that court, and it makes no difference that she had already been briefed.

Her junior drafts a pleading calling the tenant a habitual fraud with no material to support it. Rule 4 requires restrained language in pleadings and the avoidance of scurrilous attacks. Meera is not a mouth-piece and must exercise her own judgement.

The court needs a surety for an interim order and the client asks Meera to stand. Rule 10 forbids it, and forbids her certifying the soundness of a surety as well.

The presiding officer makes a remark that Meera thinks shows real bias. Rule 1 gives her the right and the duty to submit the grievance to the proper authorities. It does not entitle her to say it in open court, where rule 2 and the law of criminal contempt apply.

What beginners get wrong

Rule 1 is not only about respect. It forbids servility and makes a proper complaint a right and a duty.

Rule 3's second sentence is absolute. No improper purpose need be shown.

Rule 4 is mandatory when the client persists. The advocate shall refuse to represent him.

Rule 6 has no exception for the merits. It turns on the relationship alone, and its list is closed.

Rule 8 has a proviso. Amicus curiae, or appearing without a fee for a Bar Council, Incorporated Law Society or Bar Association, is outside it.

Rule 9 is a duty to the court, not to the client, which is why it sits in Section I.

Quick revision

• Rule 1: dignity and self-respect, not servile; a proper complaint against a judicial officer is a right and duty, to the proper authorities.
• Rule 2: a respectful attitude, because the dignity of judicial office is essential for the survival of a free community.
• Rule 3: no influence by illegal or improper means; private communications with a judge about a pending case are forbidden.
• Rule 4: restrain and prevent the client; shall refuse to represent one who persists; not a mere mouth-piece; restrained language in correspondence, pleadings and argument.
• Rule 5: prescribed dress, presentable appearance.
• Rule 6: no appearance where a member of the court is one of twenty listed relations, including brother-in-law and first cousin; the four verbs are enter appearance, act, plead or practise in any way.
• Rule 7: no bands or gown in public places outside court, except as prescribed.
• Rule 8: no appearing for or against a body of whose Executive Committee he is a member; proviso: amicus curiae, or without a fee for a Bar Council, Incorporated Law Society or Bar Association.
• Rule 9: no acting or pleading where pecuniarily interested; illustrations, creditor of the bankrupt, Director of the company.
• Rule 10: no standing as surety and no certifying a surety's soundness.

Test yourself

1. State rule 4 and the four obligations in it. An advocate shall use his best efforts to restrain and prevent his client from sharp or unfair practices; shall refuse to represent a client who persists in such conduct; shall not consider himself a mere mouth-piece of the client; and shall use restrained language in correspondence, pleadings and argument, avoiding scurrilous attacks and intemperate language.

2. May an advocate ever complain about a judge? Yes. Rule 1 provides that whenever there is proper ground for serious complaint against a judicial officer, it is his right and duty to submit the grievance to the proper authorities. What rule 2 and the law of contempt forbid is making the attack in court rather than through the proper channel.

3. An advocate's first cousin is one of three members of a Tribunal. May he appear if his cousin does not sit on the case? No. Rule 6 bars him from entering appearance, acting, pleading or practising in any way before a court, Tribunal or Authority if the sole or any member is related to him as, among others, a first cousin. The bar turns on the relationship and not on who hears the matter.

4. What is the proviso to rule 8? That the rule does not apply to a member of the Executive Committee appearing as amicus curiae, or appearing without a fee on behalf of a Bar Council, an Incorporated Law Society or a Bar Association.

5. Why is the rule against a pecuniary interest a duty to the court rather than to the client? Because it is in Section I, and because the vice is that the court is being addressed by somebody it takes to be independent when he is not. Rule 9's own illustrations are acting in a bankruptcy petition while a creditor of the bankrupt, and accepting a brief from a company of which he is a Director.

6. Can a single outburst in court be both contempt and professional misconduct? Yes. The two are separate jurisdictions: contempt lies with the court under the Contempt of Courts Act 1971 and Articles 129 and 215, and misconduct with the disciplinary committee under section 35. But Supreme Court Bar Association v. Union of India holds that the court cannot itself suspend the advocate's licence while punishing the contempt.