What is the criteria for getting Senior Counsel status ? Whether such status conferred is applicable throughout India ?What are the Privileges availabe for Senior Counsel ?
4 Replies
AnonymousLLB14 Dec 2009, 23:40
Answer in nutshell to the queries in seriatum is as under:
(a) Section 16(2) of the Advocates Act, 1961 prescribes the broad criteria viz., ability, standing at the Bar and/or special knowledge of experience in law.
(b) The Status is applicable through out India. Section 30 of the Advocates Act, 1961 would apply.
(c) In terms of Section 23 a Senior Advocate is entitled to pre-Audience over other Advocates.
Detailed Answer is as under:
According to Section 16 (1) of the Advocates Act, 1961 there shall be two classes of Advocates, namely, senior advocates and other advocates.
(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge of experience in law he is deserving of such distinction.
(Each High Court follows its own procedure in designating an Advocate as a Senior Advocate. Earlier the High Courts themselves used to consider certain Advocates as worthy of being designated as Sr. Advocate and after obtaining the consent of the Advocate concerned used to designate him as such. Now in some High Courts, the Advocate concerned who fulfills the prescribed qualificationshas applies to the High Court and makes a request to be designated as a Senior Advocate. Upon such an application the sitting Judges of the High Court express their views through ballot and according to the majority opinion the Senior Advocate status is either granted or refused.]
(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.
Section 30 confers rights to practice throughout the territory of India.
Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends, -
(i) In all Courts including the Supreme Court; (ii) Before any tribunal or person legally authorised to take evidence; and (iii) Before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.
Section 23 grants Right of pre-audience.
(1) The Attorney General of India shall have pre-audience over all other advocates.
(2) Subject to the provisions of sub-section (1), the Solicitor-General of India shall have pre-audience over all other advocates.
(3) Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.
(3A) Subject to the provisions of sub-sections (1), (2) and (3), the second Additional Solicitor-General of India shall have pre-audience over all other advocates.
(4) Subject to the provisions of sub-section (1), (2), (3) and (3A) the Advocate General of any State shall have pre-audience over all other advocates, and, the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.
(5) Subject as aforesaid-
(i) Senior advocates shall have pre-audience over other advocates; and
(ii) The right of pre-audience over senior advocates inter se and other advocates inter se shall be determined by their respective seniority.
Bar Council of India Rules, imposes certain restrictions on Senior Advocates, which is reproduced below.
BAR COUNCIL OF INDIA RULES
PART - VI
RULES GOVERNING ADVOCATES
CHAPTER -I
Restrictions on Senior Advocates
(Rules Under Sections 16 (3) and 49 (1) (g) of the Act)
Senior Advocates shall, in the matter of their practice of the profession of law mentioned in Section 30 of the Act, be subject to the following restrictions:
(a) A Senior Advocate shall not file a vakalatnama or act in any Court, or Tribunal, or before any person or other authority mentioned in Section 30 of the Act.
Explanation : “To act” means to file an appearance or any pleading or application in any court or Tribunal or before any person or other authority mentioned in Section 30 of the Act, or to do any act other than pleading required or authorised by law to be done by a party in such Court or Tribunal or before any person or other authorities mentioned in the said Section either in person or by his recognised agent or by an advocate or an attorney on his behalf.
(b) (i) A Senior Advocate shall not appear without an Advocate on Record in the Supreme Court or without an Advocate in Part II of the State Roll in any court or Tribunal or before any person or other authorities mentioned in Section 30 of the Act.
(ii) Where a Senior Advocate has been engaged prior to the coming into force of the rules in this Chapter, he shall not continue thereafter unless an advocate in Part II of the State Roll is engaged along with him. Provided that a Senior Advocate may continue to appear without an advocate in Part II of the Sate Roll in cases in which he had been briefed to appear for the prosecution or the defence in a criminal case, if he was so briefed before he is designated as a senior advocate or before coming into operation of the rules in this Chapter as the case may be.
(c) He shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal or before any person or other authorities mentioned in Section 30 of the Act or undertake conveyancing work of any kind whatsoever. This restriction however shall not extend to settling any such matter as aforesaid in consultation with an advocate in Part II of the State Roll.
(cc) A Senior Advocate shall, however, be free to make concessions or give undertaking in the course of arguments on behalf of his clients on instructions from the junior advocate.
(d) He shall not accept directly from a client any brief or instructions to appear in any Court or Tribunal or before any person or other authorities in India.
(e) A Senior Advocate who had acted as an Advocate (Junior) in a case, shall not after he has been designated as a Senior Advocate advise on grounds of appeal in a Court of Appeal or in the Supreme Court, except with an Advocate as aforesaid.
(f) A Senior Advocate may in recognition of the services rendered by an Advocate in Part-II of the State Roll appearing in any matter pay him a fee which he considers reasonable.
AnonymousLLB26 Apr 2012, 19:32
However I am working with a Senior Advocate and though they have restrictions on their practise however as mentioned in the rules I am not being paid anything, is it just that on the mercy of senior advocate that we have our future as the senior advocate i am working with Meets the clients directly and takes the brief from clients directly and we juniors are not expected to interact with the client and never to discuss the fees etc…
could anyone suggest what is the best antidote in this situation… or an authority that could help …as it surely interferes with my right of life u/Art 19 as I have a right to livelihood too…as guranteed by the constitution and the SC is the supreme protector of my fundamental rights.
hdpradhan6 May 2012, 16:28
Right to life is Article 21 not 19. As far as the senior advocate is concerned, it is professional malpractise that he is indulging in by accepting briefs. And the State Bar Council is the authority that regulates it. But the problem is proving that it is happening. Can you prove it? And remember the State Bar Council is usually loaded in favour of a Senior Advocate who has over time proved his standing at the bar vis a vis an upstart junior lawyer. And not to forget an enmity with him could harm you in the long run. As far as payment is concerned, unless you have a written agreement there is little you can do. Paying a junior engaged in his chambers is more moral than legal without a contract. So I suggest quit cribbing, kick the job and start your own practise. nothing quite as exhilarating as being your own boss. And who knows you may become a senior Advocate tomorrow and then these experiences will make you more humane and munificent towards them. Also you can ensure that you wont then break the regulations by meeting clients directly. i believe that there is only one part of the universe that we can change, and that is ourselves. Best of luck!
AnonymousLLB18 Sept 2014, 11:31
wheather he has to give application for seeking adjourment or only oral request
4 Replies
Answer in nutshell to the queries in seriatum is as under:
(a) Section 16(2) of the Advocates Act, 1961 prescribes the broad criteria viz., ability, standing at the Bar and/or special knowledge of experience in law.
(b) The Status is applicable through out India. Section 30 of the Advocates Act, 1961 would apply.
(c) In terms of Section 23 a Senior Advocate is entitled to pre-Audience over other Advocates.
Detailed Answer is as under:
According to Section 16 (1) of the Advocates Act, 1961 there shall be two classes of Advocates, namely, senior advocates and other advocates.
(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge of experience in law he is deserving of such distinction.
(Each High Court follows its own procedure in designating an Advocate as a Senior Advocate. Earlier the High Courts themselves used to consider certain Advocates as worthy of being designated as Sr. Advocate and after obtaining the consent of the Advocate concerned used to designate him as such. Now in some High Courts, the Advocate concerned who fulfills the prescribed qualificationshas applies to the High Court and makes a request to be designated as a Senior Advocate. Upon such an application the sitting Judges of the High Court express their views through ballot and according to the majority opinion the Senior Advocate status is either granted or refused.]
(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.
Section 30 confers rights to practice throughout the territory of India.
Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends, -
(i) In all Courts including the Supreme Court; (ii) Before any tribunal or person legally authorised to take evidence; and (iii) Before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.
Section 23 grants Right of pre-audience.
(1) The Attorney General of India shall have pre-audience over all other advocates.
(2) Subject to the provisions of sub-section (1), the Solicitor-General of India shall have pre-audience over all other advocates.
(3) Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.
(3A) Subject to the provisions of sub-sections (1), (2) and (3), the second Additional Solicitor-General of India shall have pre-audience over all other advocates.
(4) Subject to the provisions of sub-section (1), (2), (3) and (3A) the Advocate General of any State shall have pre-audience over all other advocates, and, the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.
(5) Subject as aforesaid-
(i) Senior advocates shall have pre-audience over other advocates; and
(ii) The right of pre-audience over senior advocates inter se and other advocates inter se shall be determined by their respective seniority.
Bar Council of India Rules, imposes certain restrictions on Senior Advocates, which is reproduced below.
BAR COUNCIL OF INDIA RULES
PART - VI
RULES GOVERNING ADVOCATES
CHAPTER -I
Restrictions on Senior Advocates
(Rules Under Sections 16 (3) and 49 (1) (g) of the Act)
Senior Advocates shall, in the matter of their practice of the profession of law mentioned in Section 30 of the Act, be subject to the following restrictions:
(a) A Senior Advocate shall not file a vakalatnama or act in any Court, or Tribunal, or before any person or other authority mentioned in Section 30 of the Act.
Explanation : “To act” means to file an appearance or any pleading or application in any court or Tribunal or before any person or other authority mentioned in Section 30 of the Act, or to do any act other than pleading required or authorised by law to be done by a party in such Court or Tribunal or before any person or other authorities mentioned in the said Section either in person or by his recognised agent or by an advocate or an attorney on his behalf.
(b) (i) A Senior Advocate shall not appear without an Advocate on Record in the Supreme Court or without an Advocate in Part II of the State Roll in any court or Tribunal or before any person or other authorities mentioned in Section 30 of the Act.
(ii) Where a Senior Advocate has been engaged prior to the coming into force of the rules in this Chapter, he shall not continue thereafter unless an advocate in Part II of the State Roll is engaged along with him. Provided that a Senior Advocate may continue to appear without an advocate in Part II of the Sate Roll in cases in which he had been briefed to appear for the prosecution or the defence in a criminal case, if he was so briefed before he is designated as a senior advocate or before coming into operation of the rules in this Chapter as the case may be.
(c) He shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal or before any person or other authorities mentioned in Section 30 of the Act or undertake conveyancing work of any kind whatsoever. This restriction however shall not extend to settling any such matter as aforesaid in consultation with an advocate in Part II of the State Roll.
(cc) A Senior Advocate shall, however, be free to make concessions or give undertaking in the course of arguments on behalf of his clients on instructions from the junior advocate.
(d) He shall not accept directly from a client any brief or instructions to appear in any Court or Tribunal or before any person or other authorities in India.
(e) A Senior Advocate who had acted as an Advocate (Junior) in a case, shall not after he has been designated as a Senior Advocate advise on grounds of appeal in a Court of Appeal or in the Supreme Court, except with an Advocate as aforesaid.
(f) A Senior Advocate may in recognition of the services rendered by an Advocate in Part-II of the State Roll appearing in any matter pay him a fee which he considers reasonable.
However I am working with a Senior Advocate and though they have restrictions on their practise however as mentioned in the rules I am not being paid anything, is it just that on the mercy of senior advocate that we have our future as the senior advocate i am working with Meets the clients directly and takes the brief from clients directly and we juniors are not expected to interact with the client and never to discuss the fees etc…
could anyone suggest what is the best antidote in this situation… or an authority that could help …as it surely interferes with my right of life u/Art 19 as I have a right to livelihood too…as guranteed by the constitution and the SC is the supreme protector of my fundamental rights.
Right to life is Article 21 not 19. As far as the senior advocate is concerned, it is professional malpractise that he is indulging in by accepting briefs. And the State Bar Council is the authority that regulates it. But the problem is proving that it is happening. Can you prove it? And remember the State Bar Council is usually loaded in favour of a Senior Advocate who has over time proved his standing at the bar vis a vis an upstart junior lawyer. And not to forget an enmity with him could harm you in the long run. As far as payment is concerned, unless you have a written agreement there is little you can do. Paying a junior engaged in his chambers is more moral than legal without a contract. So I suggest quit cribbing, kick the job and start your own practise. nothing quite as exhilarating as being your own boss. And who knows you may become a senior Advocate tomorrow and then these experiences will make you more humane and munificent towards them. Also you can ensure that you wont then break the regulations by meeting clients directly. i believe that there is only one part of the universe that we can change, and that is ourselves. Best of luck!
wheather he has to give application for seeking adjourment or only oral request