Duty to the Profession: Other Employment, Training and the Welfare Fund

Rule 49: full-time salaried employment

"An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise as an advocate so long as he continues in such employment."

This is the most heavily litigated rule in the Section, and it is the one a student is most likely to be asked about, because it decides the position of every in-house lawyer and law officer in the country.

Three obligations in one sentence. He shall not be a full-time salaried employee while he continues to practise; on taking up such employment he shall intimate the fact to the Bar Council on whose roll his name appears; and he shall thereupon cease to practise so long as the employment continues.

Note that the rule does not remove his name from the roll. He remains an advocate; he ceases to practise.

The Bar Council's own resolutions, printed with the rule, sharpen it further.

By Resolution No. 156/2001, recording that the Supreme Court had struck down appearance by Law Officers in court even on behalf of their employers, the Bar Council resolved that the judgment operates in the case of all Law Officers; that even where they had been allowed to appear for their employers, all such Law Officers shall not be allowed to appear as advocates; that State Bar Councils should ensure that Law Officers allowed to practise on behalf of their employers cease to practise; and that those who obtained enrolment after joining service by reason of the enabling provision cannot practise even on behalf of their employers.

A further note records the Bar Council's view that if the officer is a whole time employee drawing regular salary he will not be entitled to be enrolled, and that if the terms of employment show he is not in full time employment he can be enrolled.

So the working test is whether the employment is full-time, and the consequence of full-time employment is that the person does not practise, whatever his employer wants and whether or not he would only appear for the employer.

Rule 50: an inherited business

"An advocate who has inherited, or succeeded by survivorship to a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has descended to him by survivorship or inheritance or by will, provided he does not personally participate in the management thereof."

The consistent line through rules 47, 48 and 50 is management. Holding an interest is tolerated; running the business is not.

Rule 51: work that is permitted

"An advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal."

Rule 51 is worth learning as a list because it is a positive rule in a Section of prohibitions, and because it is often the answer to a problem question. Note its two express limits: the last group is subject to the rules against advertising and full-time employment, so a teaching engagement that becomes a full-time salaried post falls back into rule 49, and a broadcasting engagement used to publicise the advocate's practice falls into rule 36.

Rule 52: part-time employment with consent

"Nothing in these rules shall prevent an advocate from accepting after obtaining the consent of the State Bar Council, part-time employment provided that in the opinion of the State Bar Council, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to such directives if any as may be issued by the Bar Council of India from time to time."

Three conditions: the prior consent of the State Bar Council; the Council's opinion that the employment does not conflict with his professional work; and its opinion that it is not inconsistent with the dignity of the profession. And the whole rule is subject to directives of the Bar Council of India.

Section V: rule 45, training

"It is improper for an advocate to demand or accept fees or any premium from any person as a consideration for imparting training in law under the rules prescribed by State Bar Council to enable such person to qualify for enrolment under the Advocates Act, 1961."

A senior may not charge a junior for training him. The rule exists because the alternative is a profession that can be entered only by those who can pay to enter it, and because a person paying for training is a customer rather than a pupil.

Section IV-A: rules 40 to 44B, the Advocates Welfare Fund

Section IV-A carries no heading of its own in the print and follows Section IV, which is why it is easily mistaken for part of the duty to colleagues. Its subject is money for advocates in need.

• Rule 40: every advocate on the rolls of a State Bar Council shall pay the prescribed annual sum.
• Rule 41: the sums collected by the State Bar Council are dealt with as the rule provides.
• Rule 42: consequences of failing to pay within the prescribed time.
• Rule 43: the position of an advocate convicted of an offence mentioned in the rule.
• Rule 44: an appeal lies to the Bar Council of India at the instance of a person aggrieved.
• Rules 44A and 44B: the Bar Council of India Advocates Welfare Committee, and the utilisation of the funds received.

The Section is followed in the print by a Scheme for Financial Assistance to State Bar Councils, with its own numbered clauses.

Note also the statutory layer. The Advocates Welfare Fund Act 2001 creates a separate fund, and its section 15 requires a State Bar Council to pay to that Fund each year an amount equal to twenty per cent of the enrolment fee received under section 24(1)(f) of the Advocates Act.

A worked example

Vikram is enrolled and practises in the City Civil Court. Six proposals over two years.

He is offered a non-executive directorship of a private company with a sitting fee. Permitted by rule 48, provided none of his duties is of an executive character. But under rule 9 he may not thereafter accept a brief from that company.

The company then offers to make him Managing Director. Forbidden outright by rule 48: an advocate shall not be a Managing Director or a Secretary of any company.

He is offered a full-time salaried post as legal manager, on terms that he may still appear for the company in court. Rule 49 applies. He must intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practise so long as the employment continues. The Bar Council's Resolution No. 156/2001 is explicit that Law Officers shall not be allowed to appear as advocates, even on behalf of their employers.

He inherits a share in the family textile business. Rule 50 lets him continue to hold it, but he may not personally participate in the management.

He is asked to teach a weekly evening class at a law college for an honorarium. Rule 51 permits lecturing and teaching, subject to the rules against advertising and full-time employment. If the college later makes it a full-time salaried post, rule 49 takes over.

A junior asks to train under him and offers to pay for the privilege. Rule 45 makes it improper to demand or accept fees or any premium as consideration for imparting training in law to enable a person to qualify for enrolment.

Change one fact. Suppose Vikram wants a genuinely part-time consultancy. Rule 52 allows it, but only with the prior consent of the State Bar Council, and only if in that Council's opinion the employment neither conflicts with his professional work nor is inconsistent with the dignity of the profession.

What beginners get wrong

There is no Section headed "duty to the profession".

Rule 47 does not forbid every business interest. It forbids personally engaging, and permits a sleeping partnership subject to the State Bar Council's opinion.

Rule 48 turns on executive character. Managing Director and Secretary are forbidden by name.

Rule 49 does not strike the name off the roll. The advocate ceases to practise while the employment lasts, and must intimate it.

Rule 51 is not unqualified. Broadcasting, journalism, lecturing and teaching are subject to the rules against advertising and full-time employment.

Rule 52 needs consent in advance, not afterwards.

Section IV-A is the welfare fund, not a continuation of the duty to colleagues.

Quick revision

• MU's "duty to the profession" has no Section of its own; it is Section VII (47 to 52), Section V (45) and Section IV-A (40 to 44B).
• Rule 47: no personally engaging in business; sleeping partner allowed if the State Bar Council thinks the business not inconsistent with the dignity of the profession.
• Rule 48: Director or Chairman allowed if no duties of an executive character; Managing Director or Secretary forbidden.
• Rule 49: no full-time salaried employment while practising; must intimate the Bar Council and thereupon cease to practise. Resolution No. 156/2001: Law Officers may not appear as advocates even for their employers; a whole-time employee drawing regular salary is not entitled to be enrolled.
• Rule 50: an inherited or survived family business may be continued and a share held, but no personal participation in management.
• Rule 51: permitted work includes reviewing Parliamentary Bills, editing legal text books at a salary, press-vetting, coaching pupils, setting and examining question papers, and, subject to the rules against advertising and full-time employment, broadcasting, journalism, lecturing and teaching, legal and non-legal.
• Rule 52: part-time employment with the prior consent of the State Bar Council, if it neither conflicts with professional work nor is inconsistent with the dignity of the profession, subject to Bar Council of India directives.
• Rule 45: improper to demand or accept fees or any premium for imparting training for enrolment.
• Section IV-A, rules 40 to 44B: the Advocates Welfare Fund, the annual sum, default, conviction, appeal to the Bar Council of India, and the Advocates Welfare Committee. Statutory layer: section 15 of the Advocates Welfare Fund Act 2001, twenty per cent of the enrolment fee.

Test yourself

1. Is there a Section of the Bar Council rules headed "duty to the profession"? No. MU's heading is a textbook grouping. The duty is carried by Section VII on restrictions on other employment, rules 47 to 52, Section V on training, rule 45, and Section IV-A on the Advocates Welfare Fund, rules 40 to 44B.

2. May an advocate be a company director? Yes, as Director or Chairman of the Board with or without an ordinary sitting fee, provided none of his duties is of an executive character. He may not be a Managing Director or a Secretary. Rule 9 separately stops him accepting a brief from that company.

3. What must an advocate do on taking full-time salaried employment? Under rule 49 he must intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an advocate so long as he continues in that employment.

4. May a Law Officer appear in court for his own employer? No. The Bar Council of India's Resolution No. 156/2001, recorded with rule 49, states that all such Law Officers shall not be allowed to appear as advocates, that State Bar Councils should ensure those permitted to do so cease to practise, and that those enrolled after joining service by reason of the enabling provision cannot practise even on behalf of their employers.

5. Name four things rule 51 expressly permits. Reviewing Parliamentary Bills for remuneration, editing legal text books at a salary, doing press-vetting for newspapers, and coaching pupils for legal examinations. It also permits setting and examining question papers, and, subject to the rules against advertising and full-time employment, broadcasting, journalism, lecturing and teaching.

6. On what conditions may an advocate take part-time employment? Under rule 52, after obtaining the consent of the State Bar Council, and provided that in that Council's opinion the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession, subject to any directives of the Bar Council of India.

7. May a senior charge a junior for training him? No. Rule 45 makes it improper for an advocate to demand or accept fees or any premium as consideration for imparting training in law to enable a person to qualify for enrolment under the Advocates Act.