Duty to the Opponent: Rules 34 and 35
Chapter Twenty-Six
Syllabus topic 2.2 C. Duty to the opponent
Pages 133 to 136 of 355
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.
Duty to the Opponent: Rules 34 and 35
Rule 35: keeping legitimate promises
"An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court."
The important half of the rule is its tail. The promise binds professionally even though it is not in writing and not enforceable under the rules of court.
"Legitimate." The promise must itself be proper. A promise to conceal a document, or not to take a point the client is entitled to take without instructions, is not legitimate and rule 35 does not require it to be kept. Rule 4 of Section I would forbid making it in the first place.
"Do his best to carry out." The obligation is on the advocate's own conduct. If the client refuses to honour something the advocate promised within his authority, the advocate must do his best, which in practice means pressing the client and, if necessary, considering withdrawal under rule 12.
Why the rule matters practically. Litigation runs on undertakings that nobody writes down: an extension of time, an agreed adjournment, an assurance that a document will be produced. If those could not be relied on, every one of them would have to be applied for, and the courts would stop. This is fellowship, one of the seven lamps in chapter [The Seven Lamps of Advocacy], reduced to an enforceable rule.
What rule 35 does NOT do
It does not make the promise enforceable by the court. The rule says so on its face: the promise binds the advocate professionally even though not enforceable under the rules of the Court.
So the remedy for a broken promise is a complaint of professional misconduct under section 35 of the Advocates Act, not an application to enforce a contract. That distinction is the point of the rule and it is a good short question.
A worked example
Farida acts for a supplier suing a builder. The builder is represented by Mr Iyer.
Farida's client says the builder is reasonable and asks her to call him directly and settle. She may not. Rule 34 forbids communicating or negotiating upon the subject matter of controversy with a party represented by an advocate except through that advocate. She must deal with Mr Iyer.
She meets the builder at a function and he raises the case. She should not engage on the subject matter. The rule bars communication "in any way" and does not turn on who began the conversation.
Mr Iyer asks for two weeks to file the written statement, and Farida agrees on the telephone. That is a legitimate promise. Rule 35 requires her to do her best to carry it out even though it is not in writing and not enforceable under the rules of court. If her client later insists that she oppose the extension, she must do her best to honour her word, and if the client presses, rule 12 and withdrawal are in view.
Duty to the Opponent: Rules 34 and 35
Mr Iyer then withdraws and the builder appears in person. Rule 34 no longer applies, because the builder is not now represented by an advocate. Farida may deal with him directly, but her duties under Section I remain: she may not mislead him, and she is dealing with somebody who has no adviser.
Farida promises Mr Iyer that she will not press for costs if the written statement comes in on time. Legitimate, and rule 35 binds her, subject to her instructions. If she had no authority to give up costs, the answer is that she should not have promised, not that she may break it lightly.
What beginners get wrong
Rule 34 is not confined to negotiation. "Communicate or negotiate" are two verbs.
Rule 34 does not apply to an unrepresented party, though the general duties of honesty do.
The bar is on the subject matter, not on all contact.
Rule 35 works precisely where the promise is unenforceable. That is its whole point.
Rule 35 is not confined to written promises. It says so expressly.
A broken promise is a disciplinary matter, not a matter the court will enforce as a contract.
Quick revision
- Section III has two rules, 34 and 35. That is the whole of the duty to the opponent.
- Rule 34: no communicating or negotiating, in any way, upon the subject matter of controversy, with a party represented by an advocate, except through that advocate.
- Rule 34 does not apply where the other side is unrepresented.
- Rule 35: do his best to carry out all legitimate promises made to the opposite party, even though not reduced to writing and not enforceable under the rules of the Court.
- "Legitimate" limits rule 35: an improper promise is not protected, and rule 4 forbids making one.
- The remedy for breach is a disciplinary proceeding under section 35 of the Advocates Act, not enforcement by the court.
Test yourself
1. State rule 34 and say what it does not cover. 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. It does not cover communication with a party who is not represented, and it does not cover conversation on subjects other than the subject matter of the controversy.
Duty to the Opponent: Rules 34 and 35
2. Give two reasons for rule 34. Because a lay party dealing directly with the opponent's advocate is at a serious disadvantage and may concede what his own advocate would never allow, and because it undermines the other advocate's relationship with his client and puts any settlement beyond his advice.
3. Does rule 35 apply to an oral promise? Yes. The rule expressly binds the advocate to do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing and not enforceable under the rules of court.
4. What is the effect of the word "legitimate" in rule 35? It limits the obligation to proper promises. A promise to suppress a document or to give away a client's right without instructions is not legitimate, and rule 4 of Section I would forbid making it at all.
5. An advocate breaks a promise to his opponent about an adjournment. What is the remedy? A complaint of professional misconduct under section 35 of the Advocates Act. Rule 35 expressly contemplates promises not enforceable under the rules of court, so the remedy is disciplinary rather than an application to enforce the promise.
6. Why is Section III so short? Because most of what governs relations between opposing advocates sits elsewhere: candour to the court is Section I, taking the other side's brief is rule 33 in Section II, and appearing where another advocate holds a vakalatnama is rule 39 in Section IV. What remains as a duty to the opponent as such is communication and keeping one's word.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself for the same subject.