RESTRICTION ON

OTHER EMPLOYMENT
FOR ADVOCATES
(PROFESSIONAL ETHICS AND
ACCOUNTING FOR LAWYERS)

SUBMITTED BY,
HARINI.P,

16BLA1034,

BALLB(HONS),

4TH YEAR,

8TH SEM.
 INTRODUCTION

A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney,
counsel or solicitor; a person licensed to practice law." The profession of law is called a noble
profession. It does not remain noble merely by calling it as such unless there is a continued,
corresponding and expected performance of a noble profession. Its nobility has to be preserved,
protected and promoted. An institution cannot survive in its name or on its past glory alone. The
glory and greatness of an institution depends on its continued and meaningful performance with
grace and dignity. The profession of law being noble and honourable one, it has to continue its
meaningful, useful and purposeful performance inspired by and keeping in view the high and
rich traditions consistent with its grace, dignity, utility and prestige. Hence the provisions of the
Advocates Act and Rules made there under inter alia aimed at to achieve the same ought to be
given effect to in their true spirit and letter to maintain clean and efficient Bar in the country to
serve cause of justice which again is noble one. The Supreme court in Dr. Haniraj L. Chulani vs.
Bar Council of Maharashtra & Goa, while dealing with the validity of Rule 1 of the Maharashtra
and Goa Bar Council Rules relating to enrolment of Advocates eligibility conditions, in para 20
has observed that `legal profession requires full time attention and would not countenance an
Advocate riding two horses or more at a time'. The Bar Council has framed specific rules in this
regarding putting restriction on other employments by the Advocates.1

BAR COUNCIL OF INDIA

Chapter II of the Bar Council of India Rules made under Section 49(1)(c) of the Act read with
the proviso thereto deals with standards of professional conduct and etiquette. Preamble of
Chapter II reads: -

"An advocate shall, at all times, comport himself in a manner befitting his status as an officer of
the Court, a privileged member of the community, and a gentleman, bearing in mind that what
may be lawful and moral for a person who is not a member of the Bar, or for a member of the
Bar in his non-professional capacity may still be improper for an Advocate. Without prejudice to
1
Gururaja Chari, Advocacy & Professional Ethics, 1 ed, 2005,Wadhwa & Co, Nagpur
the generality of the foregoing obligation, an Advocate shall fearlessly uphold the interests of his
client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit.
The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general
guides; yet the specific mention thereof shall not be construed as a denial of the existence of
other equally imperative though not specifically mentioned."2

Rules 47 to 52 of Section VII of the rules deals with restrictions on other employments. This
restriction is considered as a general etiquette on the part of lawyers as the profession of law is a
noble profession and requires full time dedication.

RESTRICTION ON OTHER EMPLOYMENT

Rule 47 provides that an advocate shall not personally engage in any business; but he may be a
sleeping partner in a firm doing business provided that in the opinion of the appropriate State Bar
Council, the nature of the business is not inconsistent with the dignity of the profession. Rule 48
makes it very clear that an advocate may be Director or Chairman of the Board of Directors of a
company with or without any ordinarily sitting fee, provided none of his duties are of an
executive character. An advocate shall not be a Managing Director or a Secretary of any
company. If the functions of the advocate as a member of the Board of Directors is in case
executive in nature, then that action would be against rule 48. An advocate cannot run any
business personally and earn a profit. Rule 47 strictly prohibits that.

Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee
of any person, Government, firm, corporation or concern and on taking up such employment,
shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is
in such employment. However, there was an exception made in such cases of law officers of the
Government and corporate bodies despite his being a full- time salaried employee if such law
officer was required to act or plead in court on behalf of others. It was only to those who fall into
other categories of employment that the bar under Rule 49 would apply. An advocate employed
by the Government or a body corporate as its law officer even on terms of payment of salary
would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is

2
Ramantha Aiyer, Legal and Professional Ethics, 3 ed, 2003, Wadhwa & Co, Nagpur
 required to act or plead in courts on behalf of the employer. But this exception were deleted in
June, 2001 meeting vide Resolution No.65/2001.

The test, therefore, is not whether such person is engaged on terms of salary or by payment of
remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an
advocate. In that event the terms of engagement will not matter at all. What is of essence is as to
what such law officer engaged by the Government does - whether he acts or pleads in court on
behalf of his employer or otherwise. If he is not acting or pleading on behalf of his employer,
then he ceases to be an advocate. If the terms of engagement are such that he does not have to act
or plead, but does other kinds of work, then he becomes a mere employee of the Government or
the body corporate. Therefore, the Bar Council of India has understood the expression
"advocate" as one who is actually practicing before courts which expression would include even
those who are law officers appointed as such by the Government or body corporate.

In a case a person was enrolled as an advocate despite being a full time salaried employee as
Law officer. The State Bar Council (Bar Council of Himachal Pradesh) had not made any Rule
entitling full time salaried Law officers for practising as an advocate. The work of the person so
enrolled was not mainly or exclusively to act or plead in Court as ‘Law officer’. He was not
entitled to be enrolled as an advocate. His name may be removed from the roll of State bar
council. Such removal was not taken as punishment but rectification of mistake. Thus the
cancellation or withdrawal of enrolment was not taken as a punishment and therefore, in such
condition the procedure to be followed in case of punishment for professional misconduct was
not required to be observed.3

RULE-49

If in the rules of any State Bar Council, a provision is made entitling Law officers of the Central
government or a State or any Public Corporation or body constituted by a statute, the bar
contained in Rule 49 shall not apply to such officers despite them being full time salaried
employees. The court has observed further that not every Law officer, but only a person who is
designated as a Law Officer by terms of his appointment and who, by the said terms is required
3
Sandip Bhalla, Advocates Act 1961 and Professional Ethics,2 ed, 2004, Nasik Law house
 to act and/or plead in courts on behalf of his employer can avail the benefit of the exception
contained in Rule 49.

RULE-50

Rule 50 provides that 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.
As the purpose of these restrictions is to preserve the dignity and nobility of the legal profession,
holding of share with others in any business which he inherited is not prohibited provided he is
not participating in the management of the business there by compromising on the dedication and
attention to the profession.

RULE-51

According to rule 51 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. An advocate has a duty to his colleagues under Rule 36 not to solicit work or
advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal
communications, interviews not warranted by personal relations, furnishing or inspiring
newspaper comments or producing his photographs to be published in connection with cases in
which he has been engaged or concerned. The occupations allowed under Rule 52 are subject to
this rule also.4

Rule 51 enacts a prohibition. It is a principle of professional ethics now embodied in a statutory

rule. The violation of the rule makes the legal practitioner guilty of professional misconduct. But
it does not prohibit a dismissed Government servant who has obtained so laboriously a
declaration in his favour from claiming his just dues of salary or arrears of pay. The members of
4
Prof. Rai Kailash, Legal Ethics, Accountability for Lawyers and Bench-Bar Relations, 8 ed, 2008,
Central Law Publications, Allahabad.
 a profession must conform to the ethical standards of the profession. Rule 51 requires
conformity. Law is monopolistic profession.

If the appointment as Assistant public Prosecutor is for the purpose of creating an employment
for him, then it is needless to say that Rule 51 of the Bar Council of India Rules would segregate
him from advocates. Therefore, it would not be possible for him to contend that by adding the
years, of working as A.P.P he would be having seven years standing as an advocate. But if it is to
be interpreted that Sec 25 of the Code of Criminal Procedure enjoins the appointment of an
advocate as Assistant Public Prosecutor for conducting prosecution in courts of Magistrates, then
it debars the appointee to call himself an advocate. Sections 24, 29 and 30 of the Advocates Act,
1961 and the rules of the Bar Council of India also would deny him the right to be called an
advocate as having been appointed as A.P.P. Therefore, such a person cannot be permitted to add
the period serving as A.P.P to the period of practising as advocate for claiming “seven years’
standing’ as an advocate.

Rule 51 permits the lecturing and teaching subjects, both legal and non-legal. However, this right
is subject to the Advocates (Right to take up Law teaching) rules, 1979. According to rule 3 of
the said rules an advocate may, while practicing, take up teaching of law in any educational
institution which is affiliated to a University within the meaning of the University Grants
Commission Act, 1956 (3 of 1956), so long as the hours during which he is so engaged in the
teaching of law do not exceed three hours in a day. When any advocate is employed in any such
educational institution for the teaching of law, such employment shall, if the hours during which
he is so engaged in the teaching of law do not exceed three hours, be deemed, for the purposes of
the Act and the rules made there under, to be a part-time employment irrespective of the manner
in which such employment is described or the remuneration receivable (whether by way of a
fixed amount or on the basis of any time scale of pay or in any other manner) by the advocate for
such employment.

RULE-52
Rule 52 states that 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 India from time to time. Teaching of law for not more
than three hours a day is considered as a part-time employment.

HC RULES

A lawyer consulting full time with a public sector undertaking (PSU), who had been
unsuccessfully trying to get enrolled with the Gujarat bar council (BCG) since 2012, is not
allowed to do so and therefore practically not an advocate, ruled the Gujarat high court.5

The long-running saga of Jalpa Desai, who said that she works as a legal expert consultant with
the Gujarat Industrial Development Corporation (GIDC), had seen a report by a committee led
by retired judge Justice RC Mankad recommending enrolment that had been ignored by the bar
council. A single-judge bench then ordered the Gujarat bar council to allot Desai a temporary
enrolment number, which was stayed by a larger division bench of the high court in November
2016, after the council argued that “only those law degree holders who are engaged in teaching
profession and whose working hours do not conflict with court hours are eligible to be enrolled
as lawyers”. The case appears to have now concluded for the time being with a potentially far-
reaching judgment. The full judgment is not yet available (and the Gujarat high court’s judgment
system being offline at the time of publication), so the full impact of the decision is not yet
certain, but according to the Times report: Before the high court, Desai argued that she was never
treated as an employee and she was paying tax at source for professional services. What was paid
to her was not a salary. BCG maintained that Desai’s contract with GIDC, by which she was
getting a monthly payment of Rs25,000 required her to be present in office during office hours
and that made her a full-time employee according to the Advocates Act and Rule 49 of the Bar
Council of India.

5
‘Lawyer’s Privileges’, query.nytimes.com/mem/archivefree/pdf?
_r=1&res=9501E7D6103FE63BBC4A52DFB767838C669FDE, as accessed on 20.11.11.
 While summing up, Justice N V Anjaria ruled that BCG cannot give Desai a certificate to
practice law as an advocate. “Considering the nature of service contract of the petitioner with the
Corporation, there is no gainsaying that she incurs debility in terms of Rule 49 as her
employment could be characterized as a full-time salaried employment,” the HC said, and
concluded that refusal by BCG to grant her enrolment, and the certificate to practice law, is
“eminently proper and legal”.Looking at Rule 49 of the Bar Council Rules, it provides that an
advocate shall not be a full-time salaried employee. The conditions attached to the contract of
service of the petitioner with the Corporation are reflective of the nature of the employment. The
employment envisages that services are required to be rendered during the standard hours of
service as per condition No.2. Condition Nos.9 and 7 show that service as legal assistant
rendered by the petitioner is a full-time job and attaches with it monthly payable amount of
Rs.25,000/-.The petitioner joined the Corporation in the year 2012 and the contract has continued
having been renewed on year-to-year basis till date. Apart the continuation of the petitioner as
legal expert for such period, considering the aforesaid conditions, nature of employment and the
kind of contract entered into between the petitioner and the Corporation requiring the petitioner
to work as legal assistant or legal expert, make it evident that the same could well be
comprehended within the phrase in Rule 49 “a full-time salaried employee”. It is the condition of
the contract, the nature thereof and other attendant features of service which would determine
whether the petitioner could be comprehended as full-time salaried employee with the
Corporation or not. The mode of payment of TDS cannot determine the nature of employment
for the purpose of Rule 29 of the Rules.6

From the totality of operation of the facts and considering the nature of the service contract of
the petitioner with the Corporation, there is no gainsaying that the petitioner incurs debility in
terms of Rule 49 as her employment could be characterised as a full-time salaried employment.
As a result, refusal by the respondents to grant the petitioner enrolment and the certificate to
practice law could be said to be eminently proper and legal.

In-house lawyers or others in employment have long technically not been allowed to be enrolled
with bar councils as advocates under the professional conduct and etiquette regulations of the
Bar Council of India Rules made under the Advocates Act (see excerpts below). Pursuant to that,
6
3 rd year, B.A.LL.B (Hons.), Hidayatullah National Law University, Raipur
 lawyers in full-time employment have been required to surrender their licence and enrolment
cards when they join a company in-house in full-time employment (though many don't bother
and the bar councils have had no way to really follow up on that, so many in-house lawyers we
know have simply conveniently “forgot” to notify the bar council). This judgment seems to
underscore that.

THE LAW FIRM LOOPHOLE:

However, more worryingly for law firm lawyers, it could also end up catching nearly all lawyers
working in law firms (subject to the small print of the judgment). Technically lawyers work at
most Indian law firms (except at a few such as Nishith Desai Associates) not on employment
contracts but on retainership agreements, where they are paid professional fees that they declare
and tax themselves. It is a fine distinction and loophole, mostly on paper, which means that the
lawyers are instructed by the law firm and remain independent advocates (there are also tax
saving advantages for the law firm and the lawyer in structuring the arrangement as a retainer).
But if this judgment has been correctly reported and will be more widely followed, any lawyer
working if their “employment could be characterized as a full-time salaried employment”
(whether on retainership or under employment contracts, even for a law firm, and even possibly
in litigation departments of law firms if much of their job is office-based) may not be allowed to
enrol with a bar council and call themselves an advocate.

Until now most law firm lawyers have managed to skirt around any issues relating to that with
the retainership loophole, and it's not like the bar councils have actually been paying serious
attention to the issue.7

NO RESTRICTION FOR ENGAGING IN FOLLOWING WORKS:

7
4 th year, B.A.LL.B (Hons.), Hidayatullah National Law University, Raipur.
 Though there is general restriction on other employment, there isno restriction for engaging
himself in the following works.He can be a Sleeping partner in a business, if in the opinion ofthe
State Bar Council that business is not inconsistent with the profession.
 An Advocate who has inherited a family business shall continueit, but he shall not
personally participate in the management of the business.
 He shall engage himself in writing Law Books.
 He shall join as a part-time Law Teacher or any other part
 time job which may not be inconsistent with the legal profession. The part-time job
should not exceed more than 3 hours in a day.
 He shall prepare question papers for the Exams.
 He shall review parliamentary Bill for a remuneration.
 He shall act as a member of the parliament or Member of theState Assembly.
 He shall study Post Graduate course in Law without suspendinghis practice.An Advocate
who is engaged in other business shall be punishedfor professional misconduct (see
Dr.kaniraj L.Sulani V. Bar Council ofMaharashtra at P 66, Babulal v, Subash Jain at p 49
and Sharmav. Grudial singh at P 58)

CONCLUSION AND SUGGESTIONS

Now it is quite obvious from that legal profession is one of the most regulated profession and that
lawyers do not have absolute rights with respect to anything. Limiting the rights of lawyers to a great
extent would disadvantage the profession as a whole as it might result into loss of interest of youngsters
getting into profession. Therefore, the need of the hour is to amend the Advocates Act to incorporate
rights of lawyers in addition to the duties and make the profession more balanced.

a) The Act should be more descriptive in terms of factors which determining fees like time and effort
needed skill of lawyer etc.b) Demarcation of rights and privileges, with a focus on rights of lawyers
including those of exemption from criminal defamation, limitation on power of courts to take action
forcontempt.c) Right to fee, right to lien, right to access the judge etc. should be incorporated in the
Advocates Act to make the Act more balanced.d) More focus on self regulation through Bar Councils
than by Higher Courts to ensure autonomy and doing away with the unwarranted fetters on rights of
lawyers. This does not mean to compromise on the decorum of the court, but only to ensure that the
lawyers as a group can perform their duty without much interference.e) Relationship between Bar and
Bench should be promoted to give lawyers a better playing field. This would not only encourage the new
entrants in the profession to express themselves in a fearless and independent manner but also serve
the cause of legal profession.

BIBLIOGRAPHY