March 25, 2023

An advocate can be thought of as a supporter of a cause who assists his client by providing counsel and pleading on his behalf. The term “advocate or pleader” refers to a legal practitioner who has the authority to act and/or plead on behalf of his client in court. This profession is frequently portrayed as a noble one dedicated to the pursuit of justice.

A person may begin practicing as an Advocate before any Court or Tribunal in India once his or her name has been put on the State roll compiled and maintained by a State Bar Council under Section 17 of the Advocates Act, 1961. The role of an advocate in the administration of justice is critical. The legal profession has a long history of high standards that its members are required to uphold.

Other Employments that are prohibited by the guidelines are listed in Section VII of The Advocates Act, 1961. The following alternative jobs are not permitted:

  1. An advocate may not personally engage in any type or form of business in which he serves as a key management. He/she may, however, be a sleeping partner in a business if the State Bar Council believes it will not jeopardize the profession’s dignity.

  2. It is illegal for an Advocate to serve as a company’s managing director. His/her position should be restricted to that of a regular director, with or without sitting fees.

  3. An advocate may not work full-time for any person, government, corporation, or other entity. If the advocate chooses to work full-time, he or she must notify the State Bar Council on whose rolls he or has been enrolled. As a result, the right to practice is lost.

The legal profession is mostly a service-oriented one. Though lawyers on the full-time rolls of the Government and public bodies are referred to as their law officers, the lawyer of the Government or a public body is not an employee of the government or a public body, but a professional practitioner employed to conduct legal practice on behalf of the Government. For this reason, the saving clause of Rule 49 of the Bar Council of India Rules waives the prohibition imposed by the said rule against a lawyer accepting a full-time job in the case of such law officers and has also been upheld by the Supreme Court through the judgment of State of U.P. v. U.P. State Law Officers’ Assn.

Employment prohibited by Section 49 does not include the employment of an advocate who has been hired mainly or mostly to act and/or plead on behalf of a client in a court of law. The fact of employment is unimportant; what matters is whether such work is compatible with his practice as an attorney. It is also illegal for an advocate to participate in a business that he or she has inherited. He or she may, nevertheless, own a stake or shares in the business but not attend General Meetings, or participate in other meetings with the Members of the Company to discuss the conduct of the business. Since solicitation is expressly forbidden under Section IV Rule 36 of the regulations, an advocate is prohibited from self-advertising even when teaching, evaluating parliament bills, broadcasting, journalism, or other related activities.

The Bar Council has established an authorization system in Rule 52, whereby an advocate can apply to the specific State Bar Council (SBC) for permission to engage in an alternate occupation. This rule, however, will be applied on a case-to-case basis. The regulation concludes with a caveat that allows the Bar Council of India to issue instructions from time to time to govern the above-mentioned clauses. As a result, the Bar Council of India has broad authority to offer instructions from time to time; as a result, during the COVID 19 epidemic, the Council had made a few exceptions to the above-mentioned strict restrictions for Advocates to undertake alternative employments in other sectors including Company Secretary and independent in-house counsels. However, these relaxations were temporary and the original restrictions were brought back with the end of the lockdown.

In 2018, a legal conundrum arose over the restricted legal practice of Members of Parliament, Members of the Legislative Assembly, and other elected members due to their full-time employment and prohibition to practice law under Rule 49 of the Constitution. However, the Apex Court in Ashwini Kumar Upadhyay v. Union of India held that there is no other express provision in the Act of 1961 (Advocates Act, 1961) or the Rules framed thereunder, to even remotely suggest that any restriction has been imposed on the elected representatives, namely, MPs/MLAs/MLCs to continue to practice as advocates. In absence of an express restriction on that behalf, it is not open for this Court to debar the elected people’s representatives from practicing during the period when they are MPs/MLAs/MLCs.

The question of alternative employment is currently before the Supreme Court of India, and the court is awaiting a response from the Bar Council of India. The Bar Council of India’s power to lift the prohibition is not in the contest; thus, the Council would be well within its statutory authority to do so. The harsh restriction is unique to India, which is currently being legally considered. Today, an advocate can launch his own FinTech Legal Startup, which will necessitate the formation of a Company, Partnership, or Limited Liability Partnership, requiring him to remove his enrollment as an advocate due to the constraints. This fear of losing one’s registration is suffocating entrepreneurship, negatively impacting the economy and service sector.

The state owes it to its citizens to give equal opportunity without discrimination based on social class. The restrictions were found to be lawful by the Apex Court in the above-mentioned rulings; nonetheless, the current times are challenging, and imposing restrictions like these could be contentious for Advocates whose work scope is limited by the Bar Council of India Rules. As a result, by removing the restrictions, the Advocates can then establish their own law firms, practice independently for multiple clients and also undertake different other employments to look after them in a more financially-sound manner.

Bar Council Of India-

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