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July 14, 2020

SC issues notice to Bar Council of India on plea to allow advocates to advertise

by Mahesh Mara in Compliance Law

SC issues notice to Bar Council of India on plea allow advocates to advertise and take up other works

The world as a whole has seen a huge spike in unemployment due to the COVID-19 pandemic. The current nationwide lockdown, though was essential to flatten he curve has been the biggest job- destroyer in the country. Of these, the casual workers are the most vulnerable due to the irregular nature of their work and daily-wage payment, which are highest in construction sector. Added precautions like social distancing and strict health controls over entry at the workplace and market would also impact the employer-employee working relationship. The Supreme Court recently issued guidelines, permitting video conferencing for ensuring robust functioning of the judicial system across the country. These guidelines were mainly issued in the backdrop to contain the spread of COVID-19 pandemic. Courts, now across the nation are taking up urgent matter via video conferencing only and the lawyers are struggling to meet their financial needs.

The Supreme Court on 14th July, 2020 issued notice to the Bar Council of India (BCI) in a petition seeking permission for lawyers to use advertisements to obtain work and to have other sources of income to earn their livelihood during the COVID-19 pandemic. The petition was filed by Advocate Chanderjeet Chanderpal and the Bench comprised of Chief Justice of India SA Bobde with Justices R Subhash Reddy and AS Bopanna.

Provisions of Advocates Act, 1961

Section 35 of the Advocates Act, 1961 prescribes punishment of advocates for misconduct. The Advocates Act, 1961 as well Indian Bar Council are silent in providing exact definition for professional misconduct because of its wide scope, though under Advocates Act, 1961, punishments are prescribed when the credibility and reputation on the profession comes under a hit on account of acts by any member of the profession. One such act is that any lawyer who has Sanad (licence to practice) from the bar council shall not take up any job or business other than practice. In view of the uncertain situation that many advocates are facing caused by the COVID-19 pandemic, the petitioner had urged for some relaxations on these rules during these difficult times.

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What is mentioned in the plea to the Supreme Court?

  • The plea stated that the closure of courts across the country due to the COVID-19 pandemic has resulted in many lawyers losing their sources of income, owing to which many advocates have taken their own lives.
  • The plea stated that the existing rules need to be altered in order to accommodate advocates from lower middle class and middle class families and who are unable to sustain themselves.
  • The Court remarked that the issue concerning suicides, whether by farmers or lawyers, will be treated equally.
  • The petitioner has sought directions to the BCI to amend the Rules under the Act to:
  • Issue a clarification as regards a practising lawyer’s position as a “sleeping partner” or “sleeping director” in an organization and effectively clarify Chapter III Rule 2 of the Bar Council Rules so that advocates may be employed as legal advisors on a retainer basis.
  • Issue a circular permitting advocates use of advertisements and whatsapp messages to solicit chamber work like income tax assistance, GST assisstance or registration work.
  • Permit advocates to take up alternative sources of livelihood and income to sustain themselves, with an undertaking to be provided that the same shall not continue beyond March 2021.

Concerns raised over mental pressure on advocates

The petitioner also raises concern over the mental pressure on advocates on account of not drawing an income for sustenance. In situations where the option to earn is affected for persons other than advocates, they can look for alternatives to earn income. However such option is not applicable to advocates as this may be considered as a professional misconduct.

The petition cites the tragic incident of a 35-year-old lawyer taking his own life, and speaks of other lawyers who are unable to sustain themselves or provide medical facilities for their families. This is happening all over India and the Bar Council of India must come up with amendments or relaxations in the Rules with this regard.

The petitioner adds that a one-time financial grant and similar schemes may not be fruitful in alleviating the plight of many lawyers who are financially strained. A more permanent solution is required to be in place.

The Bench issued notice to the BCI and fixed the next date for the hearing after two weeks.

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