Category Archives: All India Bar Examination

How To Sue An Unprofessional or Unethical Lawyer in India

How To Sue An Unprofessional or Unethical Lawyer in India

How To Sue An Unprofessional or Unethical Lawyer in India

Like all professions, the legal profession is also sprinkled with a few unethical and unprofessional lawyers. To top it off, they think that the mere fact that they are lawyers, gives them immunity from the law. This article deals with how to go about suing your lawyer and how to tackle legal malpractice.

Can a client sue their lawyer in India?

Yes. A client can sue their lawyer in India, if they believe that the lawyer is guilty of professional misconduct or is in contravention of professional ethics.

On what grounds can the client sue the lawyer?

–Coming soon–

I suspect that my lawyer has colluded with the opposite party in my legal matter, what action can I take against him?

An advocate is duty bound to the client, not to disclose the communications between himself and his client to any third party, without the express consent of the client. The advocate also has a duty  to make a full and frank prior disclosure to the client, regarding the advocates interest or stake in any matter for which the client wants to engage him. An advocate should not misuse or take advantage of the confidence reposed in him by his client.

Breach of any of the above standards makes a lawyer liable for disciplinary action. A formal complaint can be made to the State Bar Council or Bar Council of India.

What laws cover legal malpractice and breach of professional ethics of lawyers in India?

Currently, The Advocates Act 1961 specifically deals with professional misconduct by legal practitioners in India and deals with the procedure and punishment.

What amounts to breach of Professional Ethics or Professional Misconduct?

Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have been placed there under section 49(1)(c) of the Advocates Act, 1961.

The whole list of professional standards for advocates in India can be seen at this link: http://www.barcouncilofindia.org/about/professional-standards/rules-on-professional-standards/

RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT

  • Act in a dignified manner
  • Respect the court
  • Not communicate in private
  • Refuse to act in an illegal manner towards the opposition
  • Refuse to represent clients who insist on unfair means
  • Appear in proper dress code
  • Refuse to appear in front of relations
  • Not to wear bands or gowns in public places
  • Not represent establishments of which he is a member
  • Not appear in matters of pecuniary interest
  • Not stand as surety for client

RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT

  • Bound to accept briefs
  • Not withdraw from service
  • Not appear in matters where he himself is a witness
  • Full and frank disclosure to client
  • Uphold interest of the client
  • Not suppress material or evidence
  • Not disclose the communications between client and himself
  • An advocate should not be a party to stir up or instigate litigation.
  • An advocate should not act on the instructions of any person other than his client or the client’s authorised agent.
  • Not charge depending on success of matters
  • Not receive interest in actionable claim
  • Not bid or purchase property arising of legal proceeding
  • Not bid or transfer property arising of legal proceeding
  • Not adjust fees against personal liability
  • An advocate should not misuse or takes advantage of the confidence reposed in him by his client.
  • Keep proper accounts
  • Divert money from accounts
  • Intimate the client on amounts
  • Adjust fees after termination of proceedings
  • Provide copy of accounts
  • An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
  • Not lend money to his client
  • Not appear for opposite parties

RULES ON ADVOCATE’S DUTY TO OPPONENTS

  • Not to negotiate directly with opposing party
  • Carry out legitimate promises made

RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES

  • Not advertise or solicit work
  • Sign-board and Name-plate
  • Not promote unauthorized practice of law
  • An advocate shall not accept a fee less than the fee, which can be taxed under rules when the client is able to pay more.
  • Consent of fellow advocate to appear

To whom can you complain about a breach of professional ethics or professional misconduct by a lawyer?

As per section 6 of the Advocates Act, 1961, the State Bar Council may entertain and determine cases of misconduct against
advocates on its roll.

If the advocate is NOT enrolled on the rolls of any State Bar Council then section 36 will apply i.e.:

36. Disciplinary powers of Bar Council of India
(1) Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

This means that you can directly complain to the State Bar Council where the advocate is practicing. Or if the advocate is not enrolled with any State Bar, you can complain directly to the BCI.

To find out if a lawyer is enrolled with a State Bar Council, you can file an application under the RTI Act for the same.

Can the State Bar Council or Bar Council of India take action against a lawyer on its own?

Yes. As per section 35 of the Advocates Act, 1961:

35. Punishment of advocates for misconduct
(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

This means that the State Bar can initiate suo motu action on its own, even without a formal complaint from any person, against an advocate on its rolls only.

Similarly under section 36, an advocate who is not enrolled on any State Bar can be prosecuted by the Bar Council of India (as above).

What is the procedure to complain against a lawyer?

–Coming soon–

What is the punishment for legal malpractice or professional misconduct by a lawyer in India?

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.

This means that there can be three punishments for the advocate:

  • A warning issued by the disciplinary committee
  • Suspension from practice
  • Permanent removal from the rolls of the State Bar Council. This does not mean

–More coming soon–

Next All India Bar Examination not in November 2012, pushed to December 2012

Update: 1-Nov-2012

The Bar Council has postponed the date of the All India Bar Examination 2012 to Sunday, 9-December-2012.

(http://www.barcouncilofindia.org/notification-regarding-all-india-bar-examination/)

  • Last Date of Sale of Forms is 5-Nov-2012
  • Last Date of Submission of Challans is 10-Nov-2012
  • Last Date of Submission of Filled-in Forms is 11-Nov-2012

Do note that you need to enroll as an advocate on your state bar council rolls, well in advance of applying for the All India Bar Examination.

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Not so frequently asked questions about the All India Bar Examination

Is the All India Bar Exam tough?

Not really. It is an application based exam, which tests not only your knowledge of law, but your reasoning and comprehension skills.
Many questions have very similar answers, or may have multiple answers which are correct. But what you have to choose is the “most accurate” or “least accurate” of the answers. This checks the students ability to prioritize the answers.

It is an ideal exam for law graduates and is a welcome move, to ensure that those joining the legal fraternity have more than “bookish” knowledge.

Read the questions carefully. Most of the answers are within the question itself. Many of the questions are asking for different things Eg: Some questions want the “most accurate” answer, while some want the “least accurate” answer.

Read the study material carefully. Most of the answers are quoted exactly as in the study material.

Will I be able to finish the exam in time?

You will have ample time to finish it. Many students finish the paper 1 hour early.

Can I change an answer on the answer sheet, once I have marked it?

Cross check which answer you are marking, as once marked, the answer cannot be changed. Do not be in a hurry to mark the answer on your answer sheet.
Read the study material carefully. Most of the answers are quoted exactly as in the study material.

Do note that the answers need to be marked on a SEPARATE SHEET, NOT ON THE QUESTION PAPER.

What should I carry into the exam?

We recommend you to carry the following:

  • Your AIBE Admit Card
  • Your Bar Council ID Card
  • Water bottle to last you through the exam duration
  • A packet of biscuits or sweets incase you feel sleepy or need a sugar kick
  • A clipboard is always an added advantage
  • A blue and black pen
  • The AIBE Study Material that you receive

Is the AIBE Study Material enough? What should I take into the Exam Hall?

Yes, the AIBE Study Material has been well made, with lucid language and appropriate content. The Study Material is sufficient to get you through the AIBE exam. You do not particularly need any bare acts or text books.

Remember that the more books you take to the exam, the more information you will have to deal with when answering the questions.

How many days prior to the exam should I start studying?

Since this is an open book exam, your aim for studying through the reference material is to refresh your memory about the subject and to assist you in locating the answer in the study material.

Ideally 2 weeks of thorough study should be sufficient to let you comfortably clear the exam. If you have not studied for the exam or have opened the books a night before, then you will need to be quick at looking up the answers.

All India Bar Examination Results 2012

The results for the All India Bar Examination held on 8-Jan-2012 were declared on 15-Feb-2012.

Results can be viewed by entering your AIBE Roll No. at http://onlineregistration.barcouncilofindia.org/result.php

Highest marks were 95 obtained by about 1% of the candidates.*

Overall pass percentage was about 62%. *

* More details in the AIBE Press Release here: http://www.barcouncilofindia.org/wp-content/uploads/2012/02/Results-Press-Release-Details-of-the-All-India-Bar-Examination-conducted-on-January-8.pdf

Now what next – Certificate of Practice?

If you have cleared the AIBE Exam, then you will shortly receive your Certificate of Practice from the Bar Council of India on your postal address or from your State Bar Council.
In the interim period you can still practice on the basis of the declared result.

Update (25-Apr-2012):

Most State Bar Council’s have still not received the Certificate’s of Practice from the Bar Council of India. It is also not clear whether they will be mailed to the candidate’s postal address directly, but it is a strong possibility that it will come through Speed Post.

Update (4-May-2012):

The Certificate of Practice has been received by most people at their Residential Address, where the AIBE Admit Card was sent. The Certificate of Practice comes through Speed Post. The certificate bears a photograph of the candidate along with all the other details provided at the time of registration.