Order IV - Advocates : Supreme Court Rules 2013

Who are Advocates? Order IV of Supreme Court Rules 2013

 

Order IV of Supreme Court Rules 2013 : "Advocates"

1 (a) Subject to the provisions of these rules an advocate whose name is entered on the roll of any State Bar Council maintained under the Advocates Act, 1961 (25 of 1961) as amended shall be entitled to appear before the Court:

Provided that an advocate whose name is entered on the roll of any State Bar Council maintained under the Advocates Act 1961 (25 of 1961) for less than one year shall be entitled to mention matters in Court for the limited purpose of asking for time, date, adjournment and similar such orders, but shall not be entitled to address the Court for the purpose of any effective hearing:

 

 

Provided further that the Court may, if it thinks desirable to do so for any reason, permit any person to appear and address the Court in a particular case.

(b) No advocate other than the Advocate-on-record for a party shall appear plead and address the Court in a mailer unless he is instructed by the advocate-on-record or permitted by the Court.

(c) In petitions/appeals received from jail or a mailer filed by a party-in- person or where a party-in person as respondent is not represented by an Advocate-on-Record the Secretary General/Registrar may require the Supreme Court Legal Services Committee to assign an Advocate who may assist the Court on behalf of such person:

Provided that whenever a party wants to appear and argue the case in person he/she shall first file an application along with the petition seeking permission to appear and argue in person. The application shall indicate reasons as to why he/she cannot engage an Advocate and wants to appear and argue in person, and if he is willing to accept an Advocate, who can be appointed for him by the Court. Such application shall, in the first instance, be placed before the concerned Registrar to interact with the party-in-person and give opinion by way of office report whether the party-in-person will be able to give necessary assistance to the Court for proper disposal of the mailer or an Advocate may be appointed as Amicus Curiae.

If the application is allowed by the Court then only the party-in-person will be permitted to appear and argue the case in person.

2. (a) The Chief Justice and the Judges may, with the consent of the advocate, designate an advocate as senior advocate if in their opinion by virtue of his ability, standing at the Bar or special knowledge or experience in law the said advocate is deserving of such distinction

(b) A senior advocate shall not-

(i) file a vakalatnama or act in any Court or Tribunal in India;

(ii) appear without an advocate-on-record in the Court or without a junior in any other Court or Tribunal in India;

(iii) accept instructions to draw pleadings or affidavit, advise on evidence or do any drafting work of an analogous kind in any Court or Tribunal in India or undertake conveyancing work of any kind whatsoever but this prohibition shall not extend to settling any such matter as aforesaid in consultation with a junior;

 

(iv) accept directly from a client any brief or Instructions to appear in any Court or Tribunal in India.

Explanation.-

In this order-
'acting' means filing an appearance or any pleadings or applications in any Court or Tribunal in India, or any act (other than pleading) required or authorised by law to be done by a party in such Court or Tribunal either 10 person or by his recognised agent or by an advocate or attorney on his behalf.

(ii) 'tribunal' includes any authority or person legally authorised to take evidence and before whom advocates are, by or under any law for the time being in force, entitled to practice.

(iii) 'junior' means an advocate other than a senior advocate.

(e) Upon an advocate being designated as a senior advocate, the Registrar shall communicate to all the High Courts and the Secretary to the Bar Council of India and the Secretary of the State Bar Council concerned the name of the said Advocate and the date on which he was so designated

3. Every advocate appearing before the court shall wear such robes and costume as may from time to time be directed by the Court.

4. Any advocate not being a senior advocate may, on his fulfilling the conditions laid down in rule 5, be registered in the Court as an advocate-on-record.

5. No advocate shall be qualified to be registered as an advocate-on-record unless :-

(i) his name is, and has been borne on the roll of any State Bar Council for a period of not less than four years on the date of commencement of his training as provided hereinafter:

Provided however, if any candidate has earlier appeared in any of the Advocates-on-Record Examination he shall continue to be so eligible to sit in any subsequent examination;

(ii) he has undergone training for one year with an advocate-on-record approved by the Court, and has thereafter passed such tests as may be held by the Court for advocates who apply to be registered as advocates on record particulars whereof shall be notified in the Official Gazette from time to time provided however that

(a) an attorney shall be exempted from such training and test, and

(b) a solicitor on the rolls of the Bombay Incorporated Law Society shall be exempted from such training and test if his/ her name is, and has been borne on the roll of State Bar Council for a period of not less than seven years on the date of making the application for registration as an advocate-an-record;

(c) the Chief Justice may, in appropriate cases, grant exemption-

(1) from the requirement of training under this clause in the case of an advocate, whose name is borne on the roll of any State Bar Council and has been borne on such roll for a period of not less than ten years.

(2) from the requirement of clause (i) and from training under this clause in the case of an advocate having special 'knowledge or experience in law.

 

(iii) he has an office in Delhi within a radius of 16 kilometers from the Court House and gives an undertaking to employ, within one month of his being registered as advocate-on-record, a registered clerk; and

(iv) he pays a registration fee of two hundred fifty rupees.

6 (1) An advocate who has been convicted of an offence involving moral turpitude shall not be eligible, unless the said conviction has been stayed or suspended by any Court, to appear in the tests referred to in clause (ii) of rule 5, on and from the date of such conviction and thereafter for a period of two years with effect from the date he has served out the sentence, or has paid the fine imposed on him, or has served out the sentence and paid the fine imposed on him, as the case may be:

Provided that the Chief Justice may, if he thinks fit so to do, relax the provisions of this rule in any particular case or cases.

(2) Nothing in clause (1) shall apply to an advocate who has been released on probation of good conduct or after due admonition and no penalty has been imposed thereafter in the manner provided under the
provisions of the Probation of Offenders Act, 1958 (20 of 1958) or under section 360 of the Code of Criminal Procedure, 1973 (2 of 1974).


7. (a) An advocate-on-record shall, on his filing a memorandum of appearance on behalf of a party accompanied by a vakalatnama duly executed by the party, be entitled-

(i) to act as well as to plead for the party in the matter and to conduct and prosecute before the Court all proceedings that may be taken in respect of the said matter or any application connected with the same or any decree or order passed therein including proceedings in taxation and applications for review; and

(ii) to deposit and receive money on behalf of the said party.

(b) (i) Where the vakalatnama is executed in the presence of the Advocate-on-Record, he shall certify that it was executed in his presence.

(ii) Where the Advocate-on-Record merely accepts the vakalatnama which is already duly executed in the presence of a Notary or an advocate, he shall make an endorsement thereon that he has satisfied himself about the due execution of the vakalatnama.

(c) No advocate other than an advocate-on-record shall be entitled to file an appearance or act for a party in the Court.

(d) Every advocate-on-record shall keep such books of account as may be necessary to show and distinguish in connection with his practice as an advocate-on-record-

(i) moneys received from or on account of and the moneys paid to or on account of each of his clients; and

 

(ii) the moneys received and the moneys paid on his own account.

(e) Every advocate-on-record shall, before taxation of the Bill of Costs, file with the Taxing Officer a Certificate showing the amount of fee paid to him or agreed to be paid to him by his client.

8. Where an advocate-on-record ceases to have an office or a registered clerk or both as required by clause

(iii) of rule 5, notice shall issue to such advocate to show cause before the Chamber Judge on a date fixed why his name should not be struck of the register of advocates on record, and if the Chamber Judge makes such an order, the name of such advocate shall be removed from the register accordingly and the advocate shall thereafter cease to be entitled to act as an advocate-on-record.

9. Where an advocate-on-record is suspended or his name is removed from the State roll maintained under The Advocates Act, 1961 [25 of 1961], he shall, unless otherwise ordered by the Court, be deemed as from the date of the order of the State Bar Council or the Bar Council of India, as the case may be, to be suspended or removed from the register of advocates on record for the same period as is mentioned in the order of the State Bar Council or the Bar Council of India, as the case may be.

10. When, on the complaint of any person or otherwise, the Court is of the opinion that an advocate-on-record has been guilty of misconduct or of conduct unbecoming of an advocate-on-record, the Court may make an order removing his name from the register of advocates on record either permanently or for such period as the Court may think fit and the Registrar shall thereupon report the Solid fact to the Bar Council of India and to State Bar Council concerned.

Provided that the Court shall, before making such order, issue to such advocate-on-record a summons returnable before the Court or before a Special Bench to be constituted by the Chief Justice, requiring the advocate on record to show cause against the matters alleged in the summons, and the summons shall, if practicable, be served personally upon him with copies of any affidavit or statement before the Court at the time of the issue of the summons.

Explanation.- For the purpose of these rules, misconduct or conduct unbecoming of an advocate-on-record shall include

a) Mere name lending by an advocate-on-record without any further participation in the proceedings of the case;

b) Absence of the advocate-on-record from the Court without any justifiable cause when the case is taken up for hearing; and

c) Failure to submit appearance slip duly signed by the advocate-on-record of actual appearances in the Court.

11. Any advocate-on-record may at any time by letter request the Registrar to remove his name from the register of advocates on record, absolutely or subject to his continuing to act as advocate-on-record in respect of all or any of the pending cases in which he may have filed a vakalamama, of which he shall file a list. The Registrar shall thereupon remove his name from the register of advocates on record, absolutely or subject as aforesaid.

 

12. Every advocate-on-record shall notify to the Registrar his / her e-mail address and the address of his office in Delhi and every change of such address, and any notice, writ, summons, or other document sent on such e-mail address or served on him or his clerk at the address so notified by him shall be deemed to have been property served.

13. (I) An advocate-on-record or a firm of advocates may employ one or more clerks to attend the registry for presenting or receiving any papers on behalf of the said advocate or firm of advocates:

Provided that the clerk has been registered with the Registrar on an application in the prescribed form made to the Registrar for the purpose:

Provided further that the said clerk gives an undertaking that he shall attend the Registry regularly.

(2) Notice of every application for the registration of a clerk shall be given to the Secretary, Supreme Court Bar Association, who shall be entitled to bring to the notice of the Registrar within seven days of the receipt of the notice any facts which in his opinion may have a bearing on the suitability of the clerk to be registered.

(3) The Registrar may decline to register any clerk who in his opinion is not sufficiently qualified, or is otherwise unsuitable to be registered as such, and may for reasons to be recorded in writing, remove from the register the name of any clerk after giving him and the employer an opportunity to show cause against such removal. Intimation shall be given to the Secretary, Bar Association, of every order registering a clerk or removing a clerk from the register.

(4) Every clerk shall, upon registration, be given an identity card which he shall produce whenever required, and which he shall surrender when he ceases to be the clerk of the advocate or firm of advocates, for whom he was registered. Where a fresh identity card is required in substitution of one that is lost or damaged, a fee of fifty rupees shall be levied for the issue of the same.

(5) Every advocate-on-record shall have a registered clerk. No advocate may employ as his clerk any person who is a tout.

14. (1) The Registrar shall publish lists of persons proved to his satisfaction, by evidence of general repute or otherwise, habitually to act as touts to be known as 'list of touts' and may from time to time, alter and amend such lists. A copy of every list of touts shall be displayed on the notice board of the Court.

 

Explanation.
In this Order-
(a) 'tout' means a person who procures, in consideration of any remuneration moving from any advocate or from any person acting on his behalf, the employment of such advocate in any legal business, or who proposes to or procures any advocate, in consideration of any remuneration moving from such advocate or from any person acting on his behalf, the employment of the advocate in such business, or who, for purposes of such procurement, frequents the precincts of the Court.

(b) the passing of a resolution by the Supreme Court Bar Association or by a High Court Bar Association declaring any person to be a tout shall be evidence of general repute of such person for the purpose of this rule.

(2) No person shall be included in the list of touts unless he has been given an opportunity to show cause against the inclusion of his name in such list. Any person may appeal to the Chamber Judge against the order of the Registrar including his name in such list.

(3) The Registrar may, by general or special order, exclude from the precincts of the Court all such persons whose names are included in the list of touts.

15. No person having an advocate-on-record shall file a vakalatnama authorizing another advocate-on-record to act for him in the same ease save with the consent of the former advocate-on-record or by leave of the Judge in Chambers, unless the former advocate-on-record is dead, or is unable by reason of infirmity of mind or body to continue to act.

16. Where a party changes his advocate-on-record, the new advocate-on-record shall give notice of the change to all other parties appearing.

17. No advocate-on-record, may, without the leave of the Court, withdraw from the conduct of any case by
reason only of the non-payment of fees by his client.

18. An advocate-on-record who, on being designated as a senior advocate or on being appointed as a Judge or for any other reason ceases to be an advocate-on-record for any party in a case shall forthwith inform the party concerned that he has ceased to represent the said party as advocate-on-record in the case. The senior advocate, so designated, shall not appear as senior advocate till he reports to the Registry that parties represented
by him earlier have been so informed of his designation as senior advocate and that necessary arrangements have been made for the parties to make appearance before the Court in all the cases represented by him till then.

19. No person having an advocate-on-record, shall be heard in person save by special leave of the Court.

20. No advocate-on-record shall authorise any person whatsoever except another advocate-on-record, to act for him in any case.

21. Every advocate-on-record shall be personally liable to the Court for the due payment of all fees and charges payable to the Court.

22. Two or more advocates on record may enter into a partnership with each other, and any partner may act in the name of the partnership provided that the partnership is registered with the Registrar. Any change in the composition of the partnership shall be notified to the Registrar.

23. Two or more advocates not being senior advocates or advocates on record, may enter into partnership and subject to the provision contained in rule 1(b), anyone of them may appear in any cause or matter before the Court in the name of the partnership.