Solicitor, Barrister, Attorney: The English Words, and What Survives of Them in India

What survives in Mumbai, which is where our reader is

This matters to an MU student in a way it does not to a student anywhere else.

The Bombay Incorporated Law Society still conducts a solicitors' examination, and practitioners in Mumbai still describe themselves as solicitors. That is a professional qualification and a description, not a separate statutory class of practitioner. A Mumbai solicitor is, under the Advocates Act, an advocate, enrolled on the roll of the Bar Council of Maharashtra and Goa like everybody else, and subject to exactly the same rules of conduct in Module II and the same discipline in Module III.

So the honest statement is this. In law there is no such thing as a solicitor in India today. In practice the word is used in Mumbai and Kolkata for an advocate who holds that additional qualification and does that kind of work. A student who says the two professions are separate in India is wrong; a student who says the word has vanished is also wrong.

Barrister

A barrister is a person called to the Bar by one of the Inns of Court in England. It is an English qualification and it has never been an Indian one.

Under section 24(1)(c) a barrister qualified for admission as an advocate in India if he was called to the Bar on or before 31 December 1976. After that date the route closed, and a barrister today must qualify like anybody else or come in through the recognition of a foreign qualification by the Bar Council of India under the same clause.

The word therefore appears in India as a description of somebody's history, usually of a generation now gone, and not as a status the Act confers.

Why India abolished the split

The reasoning is worth having, because it is a natural essay question.

Cost. A divided profession means the client pays two sets of professionals.

Access. A client who must reach counsel through a solicitor cannot reach counsel at all if he cannot afford the solicitor.

Uniformity. India had not one split but several, differing by province and by court, so a practitioner's rights depended on where he happened to be admitted. The Advocates Act was passed on the recommendation of the All India Bar Committee to produce one Bar for the whole country, and a divided profession cannot be unified without collapsing the divisions.

The counter-argument should be given too, because a good answer is not one-sided. A divided profession produces specialists in advocacy who see many cases and few clients, and it puts an independent professional between the client and the advocate, which has its own value. That is why the Advocate-on-Record system survives in the Supreme Court, and it is dealt with in chapter [Senior Counsel, Junior Counsel, Advocate-on-Record and Amicus Curiae].

A worked example

Four descriptions appear on four letterheads in Mumbai.

"Ms A, Advocate, High Court". Accurate. She is on the roll of the Bar Council of Maharashtra and Goa.

"Mr B, Solicitor". Accurate as a description of a qualification, if he has passed the Bombay Incorporated Law Society's examination and is on the roll. He is, in law, an advocate. He is subject to rule 36 of the Bar Council of India Rules like everybody else, so what the letterhead may say beyond his name is limited, as Module II explains when it reaches rule 36 and the rule against advertising.

"Mr C, Barrister-at-Law (Lincoln's Inn), Advocate". Accurate if he was called and is enrolled. But the description tells a client about an English qualification, and whether it may appear on a sign-board or a letterhead is governed by rule 36, not by whether it is true.

"Ms D, Attorney". Not accurate as a statutory description. There is no class of attorneys under the Advocates Act; section 31 was omitted in 1976. If she qualified through the articled clerk's route preserved by section 24(1)(c) and is on the roll, she is an advocate.

The point of the example. Every one of these people, whatever the letterhead says, is subject to the same Act, the same rules of conduct, the same disciplinary committees and the same punishments. That is what "one class of advocates" in section 29 means in practice.

What beginners get wrong

India does not have a divided profession. Section 29 makes advocates the only recognised class.

Section 31 is not live law. It was omitted in 1976. This chapter mentions it precisely so that a reader who finds the number in an old book knows what happened to it.

A solicitor in India is not the English solicitor. The word describes a qualification and a kind of work, and the person holding it is an advocate.

Madras is not in section 24(1)(c). The clause names the High Court at Bombay or Calcutta.

Being a barrister does not by itself entitle anyone to practise in India. Only enrolment does, under sections 24, 29 and 33.

Quick revision

• The English profession is divided: solicitors deal with the client and act, barristers are briefed and plead. India abolished the division; section 29 recognises one class, the advocate.
• Attorney: a practitioner of the original side of the High Courts at Bombay, Calcutta and Madras, admitted after articles and an examination. Section 31, the special provision for attorneys, was OMITTED in 1976 and is printed in the Act as ""Repealed."".
• Two live traces: section 24(1)(c), which keeps the articled clerk's examination of the High Court at Bombay or Calcutta as a qualifying route, and section 58AG, special provisions in relation to articled clerks.
• Barrister: called to the Bar by an English Inn of Court. Qualified for Indian enrolment under section 24(1)(c) if called on or before 31 December 1976.
• In Mumbai and Kolkata the word solicitor is still used for an advocate holding the Law Society's qualification. It is a description, not a separate statutory class.
• Reasons for unification: cost, access, and uniformity across the country. The counter-argument is specialisation and an independent professional between client and advocate, which survives in the Advocate-on-Record.

Test yourself

1. What was an attorney under the older law, and what is the position of section 31 today? An attorney was a practitioner of the original side of the High Courts at Bombay, Calcutta and Madras, admitted after service under articles and an examination set by the High Court, whose function was to act rather than to plead. Section 31, the special provision for attorneys, was omitted by the amending Act of 1976 and no longer exists.

2. Does India have solicitors? Not as a separate class of legal practitioner. The Advocates Act recognises only advocates. The word is used in Mumbai and Kolkata to describe an advocate who holds the Law Society's solicitors' qualification and does that kind of work.

3. Until when could a barrister qualify for enrolment in India on that footing? Section 24(1)(c) preserves the route for a barrister called to the Bar on or before 31 December 1976.

4. Give two reasons for a unified profession and one against. For: it removes the cost of paying two sets of professionals, and it removes the barrier between a client and the advocate who will argue his case, which is a question of access. It also makes uniform rights of audience across India possible. Against: a divided profession produces specialists in advocacy and puts an independent professional between client and counsel.

5. Which two High Courts are named in section 24(1)(c) in connection with the articled clerk's examination? Bombay and Calcutta. Madras is not named.

6. A person is called to the Bar in London in 2020 and returns to India. May he appear in an Indian court? Not on that qualification alone. The barrister route in section 24(1)(c) closed on 31 December 1976. He must be enrolled under section 24, which for a foreign qualification requires recognition by the Bar Council of India, and section 33 bars practice by anyone not enrolled.