Trademark Registry and Register of Trademark, Property in a Trademark

Trademark Registry

•Registrar and other officers (s. 3)

–Controller-General of Patents, Designs and Trade Marks appointed by Central Government

•Power of registrar to withdraw or transfer cases pending before an officer appointed under s. 3 (s. 4)

•Trade Marks Registry (s. 5)

–As established under Trade and Merchandise Marks Act, 1958

–Head Office: Mumbai 

Register of Trade Marks (s. 6)

•Record to be maintained at HO: 

–Registered TMs with names, addresses, description of proprietors, registered users, notifications of assignments and transmission, conditions, limitations etc. 

–Copy to be kept at branch office 

•Indexes maintained: 

–Registered TM 

–Applications for registrations 

–Names of proprietors 

–Names of registered users 

Property in a Trade Mark

•Proprietary rights 

–Through actual use in the marketplace or 

–Through registration of marks with the Registry 

•Features of a property 

–Control over the use of the property. 

–Right to take any benefit from the property 

–Right to transfer or sell the property 

–Right to exclude others from the property. 

When you may lose this right?

•Non payment of renewal fee 

•Non use for a length of time 

Different forms of Trade marks

•Word (Letter) mark

•Figurative mark (Logo)/ Device mark

•Service mark

•Collective mark

•Certification mark

•Well-known mark

•Unconventional trade marks – Colour, Sound, Smell, Motion

•Word mark 

–Consists of one or more words 

–Combination of numbers and letters 

–Registered in a standard typeface E.g. Coca-Cola, Sony, Apple, Microsoft, Wikipedia etc.

•Figurative mark (Logo) 

–Only figure or a figure combined with a word(s). 

–Word marks with a distinct or particular font, particular style, colour etc. 

•Service Mark

–Mark not representing the goods but the services offered by an entity

–Used in the service industry

–Restaurant, hotel, IT, Beauty, Healthcare etc.

–E.g. Facebook logo, McDonalds logo

•Collective mark 

–Linked with a group of people, association, society, institution etc. 

–Used by the members of the association to identify themselves with the quality or accuracy or such standards

•Certification mark

–To show the standard of goods or services

–Minimum standards set by the authority to be followed by the industry

•Well-known mark 

–Mark which has earned goodwill and reputation over a period of time 

–Easily recognised by the public at large 

–Enjoy a greater amount of protection 

–No one else can register their marks which resemble well known marks even if the well known mark is not registered 

•Unconventional marks (non traditional) 

–Colour mark  - Heinz Beanz

• Sound mark 
• Nokia tune 
• Yahoo tune

• Smell Mark
• Dutch company- smell of fresh grass upon tennis balls 

•Shape mark

•Taste mark 

–Few unsuccessful attempts have been made to register taste as trade marks 

•Hologram, Motion, Moving images 

– Lamborghini 

– Kraft Foods UK Ltd.

Introduction and Overview of Trade Marks

•Visual symbol

•Sign in the form of a word, device, label

•Distinctive words, letters, numbers, drawings, pictures, emblems, colour combination

•Logo, brand name

Examples

Definition [s. 2(1)(zb)]

•Means a ‘mark’ capable of being represented graphically 

–And which is capable of being distinguished the goods or services of one person from those of others 

–And may include shape of goods, their packaging and combination of colours… 

‘Mark’ defined

•includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof 

Evolution of Trade Mark Law

•Southern v. How (1617): Nobody has any right to represent his goods (or to pass off his goods) as of somebody else 

•British Trademark Act of 1875 – registration as prima facie evidence 

•Patents, Designs and Trademark Act, 1883 – ‘fancy words not in common use’, ’brands’ 

•Trademark Act of 1905 and then 1938 

•India enacted Trade Mark Act, 1940 

•After Independence, Trade & Merchandise Act, 1958 

Object, Features and Functions of Trade Mark

•Object 

–To distinguish the goods and services of one person with that of the others 

–To assure the consumer the reliability, trustworthiness, and quality of the product 

•Functions 

–Identifying the product and its origin 

–Guaranteeing the unchanged quality 

–Helping in advertising the product

Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. [2001 PTC 541 (SC)] – Trade mark is essentially adopted to advertise one’s product and to make it known to the purchaser. It attempts to portray the nature and, if possible the quality of the product and over a period of time the mark may become popular

•Short and appealing to the eye and to the ear 

•Easy to recognise and remember 

•Satisfy the requirements of registration 

•Should not belong to the class of marks prohibited for registration 

•Not descriptive but may be suggestive of the quality of the good Easy to spell correctly and write legibly

Other duties of an advocate

Duty to your-self

•Maintain your independence

–‘My Lord’ or ‘Your Honour’ etc. only when they act as Judges and not otherwise

•Be businesslike in your habits

–Fix separate appointments for clients; do not crowd together different clients

•Client’s interest v. Higher duty of observing truth 

•Manner of conducting litigation your responsibility 

–Client should not be given control over it 

•Admit your mistakes 

–Forgotten or neglected to do 

–Don’t dodge the responsibility 

–Accept it 

•Don’t assert personal beliefs in your arguments 

–Character or eminence of counsel immaterial 

•Do not make a difference between ‘small’ and ‘large’ case 

–If you neglect ‘small’ cases, you may not get ‘large’ cases 

•Do not delay things - dangerous 

Duty to Colleagues - Section IV

36. Shall not solicit work 

–Sign-board/ name plate be of reasonable size 

–Should not indicate that is or has been President/Member of Bar Council 

37. Don’t permit your professional services or your name to be used for unauthorised practice of law by law agency 

38. Don’t accept fee less than what is taxable under the rules if client can pay for it

39. If there is already a vakaltnama filed, do not file an appearance in that case without that advocate’s consent

Section IV-A

•Advocates to pay such sum as prescribed to the SBC towards ‘Bar Council of India Advocates Welfare Fund’ (40) 

–SBC to retain 80% and remit 20% to BCI 

•If convicted under section24A (43) 

–Insolvent 

–Engages in any service/business 

–Inform BCI within 90 days 

Section V

•Duty in imparting training (45) 

–Not to demand/accept any fees for imparting training to students (internship) 

Section VI

•Duty to render legal aid (46) 

–Free legal assistance to the needy and poor is one of the highest obligations 

Section VII – Restriction on other employments

•Not to engage in any other business (47) 

–But can be a sleeping partner in a firm 

–Nature of business must not be inconsistent with the dignity of profession 

•Can’t be a secretary or a Managing Director in any company (48) 

–May be a director or chairman of BoD, but duties should not be of Executive character

•Can’t be a full-time salaried employee while engaging in practice (49) 

–Immediately inform BCI and he shall cease to practice so long as he continues to practice 

•Inheritance of family business (50) 

–Can continue but may not participate personally in the management 

•Can review Parliamentary Bills for a remuneration (51) 

–Edit legal text books at a salary 

–do press-vetting for newspapers 

–coach pupils for legal examination 

–set and examine question papers 

–Lecturing and teaching 

•Advocate may accept part time employment (52) 

–After obtaining the consent of state bar council 

–Provided the nature of employment does not conflict with the professional work and 

–Is not in conflict with the dignity of the profession



Duty to the Public and the State

•Discourage dishonest, desperate and dubious, litigations
–Assist honest litigation

•Do not help client, to corrupt a witness into giving false evidence
–Directly and indirectly

–Case: Plaintiff suing for damages-assaulted by defendant in the presence of sole witness-he in his letter asked for money to testify-otherwise I will ‘forget’-advocate agreed-charged with professional misconduct

•Litigation should not be unduly delayed
–No adjournments without reasonable cause 

•Remember that fair administration of equal and just laws in the State far more important than success or failure of an individual

Duty to the Client & to the Opponent

Duty to the Client: Section II

•Bound to accept any brief at a fee consisting with standing and nature except under special circumstances (11)

•Don’t withdraw from engagements without sufficient cause and unless reasonable and sufficient notice is given to client. Refund the part fee (12)

•Don’t accept a case where you will be a witness (13)

•Make full and complete disclosure relating to your connection with the parties and any interest in the matter (14) 

–It may affect client’s judgment 

•Duty to fearlessly uphold the interests of the client by fair and honourable means (15) 

•If you are appearing for prosecution, it should not lead to the conviction of an innocent (16) 

–Don’t suppress such material fact 

•Don’t violate section 126 of the Indian Evidence Act – (Advocate-Client privilege) (17) 

•Don’t be a party to fomenting (instigating) of a litigation (18) 

•Don’t act on the instructions of any person other than the client or his authorised agent. (19) 

•An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof (20)

•An advocate shall not buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim (21) 

•An advocate shall not bid for or purchase,(22) 

–either in his own name or in any other name, 

–for his own benefit or for the benefit of any other person 

–any property sold in the execution of a decree or order in any suit, appeal or other proceeding 

–in which he was in any way professionally engaged 

•An advocate shall not directly or indirectly bid in court auction (22A) 

–or acquire by way of sale, gift, exchange or any other mode of transfer 

–either in his own name or in any other name for his own benefit or for the benefit of any other person any property 

–which is subject matter of any suit appeal or other proceedings in which he is in any way professionally engaged 

•An advocate shall not adjust fee payable to him by his client (23)

–against his own personal liability to the client, which liability does

–not arise in the course of his employment as an advocate

•Don’t abuse or take advantage of the confidence bestowed upon you by client (24)

•Keep proper accounts of your client’s money (25) 

•Do not divert any expenses towards fees (26) 

•If you receive any money on behalf of client, inform this immediately to him (27) 

•After the termination of the proceeding, (28) 

–the advocate shall be at liberty to appropriate towards the settled fee due to him, 

–any sum remaining unexpended out of the amount paid or sent to him for expenses 

–or any amount that has come into his hands in that proceeding. 

•Where the fee has been left unsettled, the advocate shall be entitled to deduct, (29) 

–out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he had been engaged, 

–the fee payable under the rules of the Court, in force for the time being, or by then settled and the balance, if any, shall be refunded to the client 

•Furnish copy of client’s account whenever demanded (30) 

•Don’t loan the money received from client (31) 

•An advocate shall not lend money to his client 

–for the purpose of any action or legal proceedings 

–in which he is engaged by such client. (32) 

•An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, 

–shall not act, appear or plead for the opposite party (33) 

•One of the many cases for you, but its the only case for him 

Duty to Opponent – Section III

34. Do not communicate or negotiate upon the subject matter of controversy with any party represented by an advocate except through that advocate 

35. An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court 

•Avoid unnecessary personal difficulties with your opponent

•Treat him as a gentleman and never suspect him

•Don’t mislead him by concealing or withholding facts 

•Don’t interrupt him; because even you wouldn’t like to be interrupted

•Don’t speak ill to your clients about opponents 

•If opponent is young, don’t intimidate him, encourage him to conduct himself well 

•Don’t discuss the case with the court in the opponent’s absence and don’t try to get an order from the court behind his back 

Duty to the Court and to the Profession

Bar Council of India Rules

Chapter II – Standards of Professional Conduct and Etiquette

Section I - Duty to the Court 

•Be Respectful

–Not for the sake of the judge but to maintain the post’s supreme importance

–Conduct yourself with dignity and self-respect

–If there is a proper ground for serious complaint against a judicial officer, submit the grievance to proper authorities

–Rule 1 & 2

•Never exhibit familiarity with the Judge 

–You may bring discredit to an innocent and honourable Judge

•Attend the case throughout once started 

•Be present in the Court to take judgments 

–If can’t attend personally, make an alternative arrangement 

•Never communicate or argue privately with a Judge about the merits of a pending case (Rule 3) 

–May suggest that you are impairing the dignity and impartiality of the Judge 

•Never display temper because of adverse decisions 

•Don’t speak ill-will of the Judge 

•Never take a case if Judge is a relative (Rule 6) 

•Never interrupt the opponent counsel without cause

•Don’t repeat arguments to the annoyance of the Judge 

•Never mislead the Judge 

–Complete candour and frankness necessary 

•Do not include facts in pleadings which you know are false – professional misconduct 

–Merely letting this know to the client not sufficient 

–Must withdraw from the case if client disagrees 

•Must restrain and prevent your client from resorting to sharp or unfair practices 

–Must refuse to represent such client who persists in such improper conduct 

–You should not be a mere mouth-piece of the client 

–Rule 4 

•Arguments must be pointed, clear, precise and concise 

•Tactful in presenting the matters 

•Should not influence the decisions of the Court in any manner (Rule 3) 

•Wear prescribed dress (band and gown) in Court but not in public places and always be presentable (Rule 5 and Rule 7) 

•Not to appear before any authority for or against an organisation where you are an Executive Committee member (Rule 8) 

•Not to act in a matter where you have a pecuniary interest (Rule 9) 

–should not act in a bankruptcy petition when you are also a creditor of the bankrupt 

–should not accept a brief from a company where you are a Director 

•Cannot stand as a surety for the purpose of legal proceedings (Rule 10)

Duty to the Profession

•Keep up the best traditions of the Bar 

•Never be a party to the lowering of standards 

–Every member is a trustee for the honour and prestige of the profession as a whole 

•Don’t pursue your profession in a spirit of competition and rivalry 

•Do not underbid 

–Don’t underbid; help bring other’s fees to normal 

•Do not keep out a brother practitioner

•Show respect to seniors and sympathy and kindness to juniors 

•Help juniors when needed 

–Professional conduct, question of conflict of interest, conflict between duty to the Court and to the Client 

•Never criticize work of earlier advocates when you take a case in between 

•Be a sport when occasion demands 

–Due to misconception, Judge may criticize opponent counsel without his fault 

–Then it’s your duty to correct the Judge and rescue your opponent 

•Do not speak ill-will of other lawyers 

•Your own interests are subordinate to your professional interests 

•Never encroach upon others’ clients 

•Senior-Junior relationship 

–Junior should be a "walking stick and not a crutch"

Right to Practice - A Right or Privilege?

Difference between Right and Privilege

Right 

1. Standard of permitted action by law; Legally enforceable claim, inseparable with remedy
2. Involves a duty on some one else for the benefit of the right-holder
3. Action or forbearance comes from the one who is burdened to satisfy the right

Privilege

1. Benefit or immunity conferred by law on a group of persons 
2. Person who enjoys the liberty can by himself do or abstain from doing anything which he has the right to do or abstain from doing 
3. No such thing 

Chapter IV of the Advocates Act, 1961 

–Advocates to be the only recognised class of persons to practice law (s. 29) 

–Right to advocates to practice (s. 30) 

–Advocates alone entitled to practice

Law relating to Legal Profession

•The Advocates Act, 1961

–Establishment of Bar Council of India and State bar Councils, common roll of advocates enabling them to practice 

–Abolition of different classes of legal practitioners and recognition of only one class known as Advocates

–Uniform qualifications for enrolment

–Division of advocates into senior advocates and other advocates 

–Regulations of the conduct of advocates by punishment for misconduct

•Bar Council of India Rules 

–Election of members of the Council and different committees 

–Administration of Council and finance 

–Preparation and maintenance of the State roll 

–Seniority in the state rolls 

–Standard of professional conduct and etiqutte 

–Disciplinary proceedings and review 

•Contempt of Courts Act, 1971 

•Advocates (Removal of Difficulties) Orders, 1963, 1966, 1968 

–Power conferred by s. 59(1) 

•Advocates (Right to take up Law Teaching) Rules, 1979 

–Not exceeding three hours while practicing 

•The Legal Services Authorities Act, 1987 

–To provide free and competent legal service to the weaker sections of the society 

–To organise Lok Adalats 

•The National Legal Services Authority Rules, 1995 

–Rules explaining the qualifications, functions and powers of the Legal Services Authorities 

–Power under s. 27 of the Act 

•The Supreme Court Legal Services Committee Regulations, 1996 

–Rules by Central Government regarding SC Legal Services Committee 

•Supreme Court Rules, 1966 

–Regulating the practice of SC advocates 

•Supreme Court Bar Association Rules 

•Advocates’ Welfare Fund Acts and Rules of different states 

•The Legal Practitioners Act, 1879 

–Was repealed except the sections related to s. 1, 3 and 36

Salient Features of the Advocates Act, 1961 (contd.)

Rights and Privileges of an Advocate

1.Right to Practice (s. 30)

2.Right to charge fee (BCI rules)

–Fee consistent with standing at the bar and nature of the case

3.Right to refuse?

–Client persisting in unfair practices and improper conduct, Part VI, Chapter II, Section I, Rule 4

–If the Judge is a relative, Rule 6

•Parents, children, grandparents, grandchildren, siblings, uncle, aunt, nephew, niece, in-laws 

–For or against an organisation, if a member of the Executive Committee, Rule 8 

–Matters where he has pecuniary interest, Rule 9 

•Bankruptcy petition when he is a creditor 

•Company where he is a director 

–Where he might be a witness, Rule 13

Bar Council of India (s. 4)

•Members 

–Attorney–General 

–Solicitor-General 

–One from each SBC 

•Eligibility- ten years’ on the state roll 

•Term for ex-officio members- two years or ceases to be a member of SBC 

–Chairman and Vice-Chairman 

Functions of BCI (s. 7)

1. (b) lay down standards of professional conduct and etiquette 

(c) Lay down procedure followed by disciplinary committee of BCI and SBC 

(d) Safeguard rights, privileges and interests of advocates 

(e) Promote and support law reform 

(f) Deal and dispose of any matter under the Act 

(g) General control and supervision over SBC 

(h) Promote legal education and lay down standards 

(i)Recognise law universities and inspect them 

(ia) conduct seminars and organise talks , publish journals and papers

(ib) organise legal aid

(ic) recognise on a reciprocal basis any foreign law degrees for purpose of enrollment

(j) Manage and invest funds

(k) Provide for election of the members

(l) Perform all other such members

(m) Do all other things necessary for discharging above mentioned functions 

2. Establish funds for 

(a) welfare schemes for indigent, disabled or other advocates

(b) Giving legal aid or advice

(c) Establishing law libraries 

Power of Bar Council to make rules (s. 15)

(2)(a) election of BCI members, voting rules etc

(c) Manner of election of Chairman and VC

(d) Resolving disputes regarding validity of the election

(f) Filling of vacancies

(g) Powers and duties of Chairman and VC

(ga) rules regarding constitution of funds

(gb) organising legal aid and advice to the poor

(h) Summoning and holding of meetings of BC

(i)Constitution and functions of any committee

(j) Meetings of such committees

(k) Qualifications of secretary, accountant etc 

(l) Maintenance of books of accounts 

(m) Audit and auditors 

(n) Management and investment of funds 

State Bar Councils

•Members

–Advocate-General of India (Addl. Solicitor-General for Delhi)

–Electorate more than 10,000 – 25 members

Between 5,000-10,000 – 20 members

less than 5000 – 15 members

–Half of them should have been members for 10 years

–Chairman and VC 

Functions of SBC (s. 6)

1 (a) admit persons as advocates 

(b) Prepare and maintain a role 

(c) Determine cases of misconduct 

(d) Safeguard the rights, privileges and interests of advocates 

(dd)Promote growth of bar associations for implementing welfare schemes 

(e) Promote and support law reform 

(ee) Conduct seminars, legal talks, publish journals and paper 

(eee) Organise legal aid 

Same as BCI 

Disciplinary Proceedings

•Punishment of advocates for misconduct (s. 35)

–Discourteous behaviour towards the Bench in the Court

–Use of hot words, epithets or disrespectful, derogatory or threatening language in the Court

–Ill-temper overbearing the Court

–Defrauding/cheating the party

–Business of profit making

–Failing to file a case after acceptance of brief 

(1) Receipt of a complaint or otherwise, 

–SBC has reason to believe 

–Guilty of professional or other misconduct 

–Refer the case to the disciplinary committee 

(2) After an opportunity for the advocate and the Advocate-General of being heard 

–Dismiss the complaint/ file the proceedings 

–Reprimand the advocate 

–Suspend him from practice 

–Remove the name from the state roll 

•Once suspended, he is debarred for that time from practicing in India 

•One year time allotted to dispose of the case, otherwise case transferred to BCI 

•Disciplinary powers of BCI – s. 36 

–Any advocate not on the roll of any SBC 

•Disciplinary Committee – s. 9 

–Three members, 

•Two BCI members 

•Third person – advocate having 10 years’ standing and who is not a member of BCI 

•Senior most will be the Chairman 

•Powers – s. 42 

–All the powers of a Civil Court under Code of Civil Procedure, 1908 namely 

–Summoning and enforcing the attendance and examining on oath 

–Requiring discovery and production of documents 

–Receiving evidence on affidavits 

–Requisitioning any public record 

–Issuing commissions for examination of witnesses 

–Any other prescribed matter 

•DC may send summons or other process for the attendance of a witness or production of a document

•Remedies available to the Advocates 

–Review of orders by the Disciplinary Committee (s. 44) 

•Within 60 days 

•Own motion or otherwise 

–Appeal to BCI (s. 37) 

•Within 60 days 

–Appeal to Supreme Court (s. 38) 

•Within 60 days 

–Application for Stay (s. 40(1)) 

•DC of BCI or SC may stay the proceedings 

•Penalty of illegal practicing (s. 45) 

–Imprisonment up to six months

Salient Features of The Advocates Act, 1961

Admission and Enrollment (s. 24)

1.(a) citizen of India – foreign nationals may be enrolled if that country allows Indian nationals 

(b) completed age of 21 years

(c) obtained a degree of law from a University recognized by Bar Council of India

(d) omitted by 1973 amendment

(e) other such conditions specified in rules by State Bar Council

(f) paid stamp duty and enrollment fee 

(2) Vakil or pleader who is a law graduate may be admitted if he fulfills the other conditions

(3) vakil, pleader, mukhtar, High Court advocate, and all such other persons eligible to practice law under prevalent law

•Pre-enrolment training and apprenticeship is ultra vires –V. Sudeer v. Bar Council of India, AIR 1999 SC 1167

•Rule that persons attaining age of 45 years cannot be enrolled is ultra vires – Indian Council of Legal Aid and Advice v. Bar Council of India, AIR 1995 SC 691 

Disqualifications for Enrolment (s. 24A)

1.(a) convicted of an offence involving moral turpitude; 

(b) convicted under Untouchability (Offences) Act, 1955; 

(c) dismissed or removed from employment or office or any charge involving moral turpitude 

Provided: disqualification to cease to have effect after 2 years after release, dismissal or removal

2.Sub-section 1 not applicable to person dealt with under Probation of Offenders Act, 1958

•Obtaining false certificate about social status – Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development, AIR 1995 SC 94

•If person guilty of moral turpitude, name can be removed from the roll of advocates - Hikmat Ali Khan v. Ishwara Prasad Arya, AIR 1997 SC 864 

Enrollment Procedure

s. 25 : Application to the State Bar Council where one wishes to practice 

s. 26 : SBC refers it to enrollment committee; 

has power to remove the name if person entered it by misrepresentation, fraud or undue influence; 

intimate all other Bar Councils of the refusal to accept any application 

s. 27: Application once refused not to be entertained by another Bar Council without written consent from the previous Bar Council 

s. 28 : Power to make rules

–Time and form to make an application

–Conditions to be admitted

–Installments for enrollment fee

s. 22 : Certificate of Enrollment

s. 17 : SBC to maintain roll of advocates

s. 18 : Transfer from one state to another

Senior and other Advocates (s. 16)

•Two classes of advocates: Senior and Other

•Senior Advocate:

–Ability

–Standing at the bar

–Special knowledge/experience in law

in the opinion of the High Court/Supreme Court

Restrictions on Senior Advocate

•Cannot file a Vakalatnama or act in any Court, Tribunal etc 

–Act means filing an appearance, pleading, application or any other thing required or authorized by law either in person, or through agent or advocate 

•Must appear with an Advocate on Record in the SC and with an Advocate of the State Roll in any other Court/Tribunal 

•No accepting instructions to draft pleading or affidavits, advice on evidence 

•Cannot directly accept from a Client any brief or instructions to appear in Court 

Right of Pre-audience (s. 23)

1.Attorney –General of India 

2.Solicitor-General of India 

3.Additional Solicitor-General of India 

4.Second Additional Solicitor-General of India 

5.Advocate-General of States 

6.Senior Advocates 

Development of Legal Profession in India

• Before Independence
• Modern legal system established in India
• Before 1726, Courts derived their power from the East India Company
• Charter of 1661 in force

• Charter of 1726
• Mayor’s Courts established in towns of Bombay, Calcutta and Madras
• No facility for legal training and regulation
• No jurisdiction to try criminal cases
• Criminal jurisdiction conferred on the Governor

• Charter of 1753 
• Also ignored significant provisions for legal training and education 
• Legal profession was still unorganised 

• Charter of 1774 
• The Regulating Act, 1773 empowered the British Crown to establish a Supreme Court at Calcutta 
• Calcutta, 1774, at Madras, 1801, At Bombay in 1823 
• Clause II empowered the Calcutta Court to approve and enrol Advocates and Attorneys-in-law 
• Indian Legal Practitioners not allowed to enter Supreme Court 
• Advocates meant British and Irish Barristers and Scotland advocates 

• The Bengal Regulation Act of 1793 
• Permitted qualified Hindu and Muslim persons to be enrolled as pleaders 

• The Bengal Regulation Act, 1833 
• Permitted all qualified persons of any nationality or religion to be enrolled as Pleaders of Sadr Diwani Adalat 

• The Legal Practitioners Act, 1846 
• Allowed Attorneys and Barristers enrolled in any of Her Majesty’s Courts in India to plead in Diwani Adalat 

• The Legal Practitioners Act, 1853 
• Authorised the Barristers and Attorneys of the SC to plead in Company’s Courts subordinate to Sadr Courts

• Indian High Courts Act, 1861 
• Empowered the Government to establish High Courts in Presidency Towns 
• Then Civil Courts were established 
• Criminal Courts established as per Criminal Procedure code of 1898 

• The Letter Patent of 1865 of High Court of Calcutta 
• Enrolment of Legal Practitioners 
• Cal. HC empowered to approve, admit and enrol advocates, vakils and attorneys

• Legal Practitioners Act, 1879 
• ‘legal practitioner’ means advocate, vakil or attorney of a High Court and 
• Pleader, Mukhtar or revenue agent, who were non-graduates and Matriculates 
• S. 5: Right to Practice 
• S. 6: Rules regarding suspension and dismissal of pleaders and Mukhtars 
• S. 7: Power to issue certificates to Pleaders and Mukhtars 
• S. 8: Right to practice in revenue offices (Pleaders) 
• S. 9: Right of Mukhtars to practice 
• S. 12: HC can suspend if guilty of criminal offence
• S. 13: HC can suspend if guilty of unprofessional conduct  

• Indian Bar Committee, 1923 
• This committee was constituted under Sir Edward Chamier to consider the issue of organisation of the Bar on all India basis 
• Committee did not favour the establishment of All India Bar Council 
• But proposed a Bar Council for each High Court 

• Indian Bar Council Act, 1926 
• Provided a bar council for each HC 
• Bombay HC and Calcutta HC allowed non-Barristers to practice. 
• Distinction between Barristers and Advocates was abolished 
• Function of Bar Council was advisory and rules were to be effective only on the approval of the HC 
• S. 10: Empowers the HC to reprimand, suspend or remove an advocate for professional or other misconduct 
• The Legal Practitioners Fees Act, 1926 was passed 

• •Legal Profession in Independent India 
• All India Bar Committee, 1951 
• Committee constituted under the chairmanship of Justice Sudhi Ranjan Das and recommended 
• Establishment of AIBC and SBC 
• Powers of enrolment, suspension or removal of advocates 
• Common roll of advocates be maintained and be authorised to practice all over India 
• No recruitment of non-graduated pleaders or mukhtars 
• Similar recommendations made by 14th report of Fifth Law Commission of India 

• Advocates Act, 1961

Training Grounds and Meeting Clients

Training Grounds for young lawyers

1. Attend the chambers of a senior practitioner

–You should have courage to stand on your own legs, this will be a preparation for it

–Know the atmosphere of law

–Get inspired from 

•senior’s mode of dealing with cases

•Way of drafting pleadings

•Conducting the examination of witnesses in court

–Make yourself indispensable with the matter asked to be studied by your senior 

2. Next training ground is court-house 

–Never remain absent from court because you have no work to do there 

–Always be in court, fully dressed (need to get accustomed to it) 

–Learn by the mistakes of others! 

–You will have opportunities for making yourself known; never miss those

Meeting Clients

•Allow him to say in full 

–Don’t interrupt, he may repeat things, allow him 

–Hear the whole tale, cannot afford to miss even one relevant fact 

–Plus you’ll come to know if he is telling the same story 

–Reserve your questions till the end 

•Proceed cautiously 

–Do not take for granted everything he says 

•He may want to make you believe in a false case 

–Enquire properly, examine the facts and arrive at a conclusion 

–Client may promise a host of witnesses and a heap of documents 

–Don’t be misled; examine those documents carefully; 

–Do not rely on the client’s statements 

•Don’t avoid a discussion with your clients 

–Even though he may not be knowing law and his opinion may not have value as such 

•Take written notes; 

–Never safe to rely wholly on your memory

•After careful examination, be honest with him 

–Make him understand that he does not have a case 

–Better to let him know in the beginning 

•About charging a fee 

–Should not be either oppressive or too low 

–Neither overestimate the value of your services nor underrate it

Privileges of a Lawyer

•The practice of the law is not a business open to all but a right or a privilege

•Being a member of the profession, representing the clients etc is itself a privilege

•Our privilege is our duty and our duty is our privilege

•Right to a fee

•Right to have an audience and be heard without any hindrance

•Right not to be arrested while going to or attending the tribunal for a pending matter

•Once engaged in a case and after filing vakalatnama, another lawyer cannot get into your case without your consent

•Privilege to ensure that forms and requirements of law are strictly observed and to defend an accused even if you know that he is guilty

•Privilege of being able to be appointed for several offices (Judge)

•Right to lien on client’s papers and documents for unpaid fees

Conduct in Court and Professional Conduct in general

Conduct in Court

1.Be calm and composed 

–Wait till the Judge asks you to proceed

–Self possession, pleasant humour, modesty

2.Don’t interrupt the Judge

–Don’t jump at conclusions

3.Same with your opponent

4.Don’t argue across the bar (i.e. with opponents)

–Present arguments to the Judge

5. Never contradict a Judge (even though he may be incorrect) 

6. Answer the questions directly 

–Relevance or futility does not matter 

7. Never offer to argue when not called for, never continue it when Judge is in your favour 

8. Don’t lose balance or temper if Judge reacts differently 

9. Don’t speak ill of any Judge

10. Present your best evidence/point first

–Creates favourable first impression and Judge may accept other weaker points if any

Justice Williams: “If you do not make an impression within the first fifteen minutes you may argue till the end of the day without making any”

–Court may feel that so much time has been needlessly wasted initially over weak points 

•Judge may observe prima facie that if it were a good point, advocate would have made it in the beginning 

•So if your arguments are direct and to the point and you don’t beat around the bush, Judge would appreciate it. 

11. Always look the Judge in the face and not down 

–How Judge takes your points; face is the best index 

12. Start your case from the beginning, like you are telling a story for the first time 

13. Get into the habit of reading from the records, than from your memory

14. Always quote the references; language quoted from a decision or textbook makes greater appeal to the Judge than our own language

15. Language employed must be correct

–Read good judgments to acquire correct legal phraseology

16. Do not conceal points/cases against you from the Court; failure to refer may be construed as your weakness

17. Begin with

–Account of the parties

–Circumstances that led to the present dispute

–Precise nature of the dispute

–Points at issue

–Proofs that you intend to produce in order to establish them 

Professional Conduct in general

•What is morally wrong cannot be professionally right.

•Things to remember

–Touting (Commission)

•Advocate must not seek business, but business must seek advocates

–Advertising

•Your work must speak for itself

–Interview to media over pending matter

–Duty must prevail over interest

–You must not appear before a local authority of which you are a member or in a case against it.

–If you are appearing as a counsel, you should not give evidence as a witness (and vice versa) 

•Suspicion on character, loss of respect for the profession, diminish public confidence 

–You should refuse to accept a case when it is clear that the Client has no case 

–Your efforts must not be dependent on the amount of fees once you have determined it. 

Equipments of a Lawyer

•A lawyer must know everything about something and something about everything.

•First equipment – legal learning

–Accurate learning, wide knowledge, courage

–Without learning, we cannot frame correct questions and cannot locate answers to those questions

–We cannot find what we want unless we know where to find it 

•Success in examination no guarantee 

–Comprehensive and thorough knowledge of law cannot be mastered in law college 

•Ability to talk fluently no guarantee 

–Nor it is sine qua non 

–One may not be a great speaker in the beginning but what is required is power of argument and that can be acquired by constant habit and exercise. 

•Second Equipment – Depth and wide range of ideas 

–Ideas 

–World of information 

–Ready capacity to recall to mind what you know and put it to use 

•Third Equipment – Moral Excellence 

–Moral excellence is an indispensable element 

–Includes character, honesty, integrity etc. 

•Fourth Equipment – Infinite Industry (hard work) 

–Hard and regular work 

–Live like a hermit and work like a horse 

Equipments as mentioned by Justice Raj Kishore Prasad

1.Honesty, Integrity, Character 

2.Patience & Perseverance 

3.Legal Learning 

4.General Education 

5.Memory 

6.Study of Law Reports 

7.Use of Legal Phraseology 

8.Manners in Court 

9.Presentation of a case 

10.Citation of Authorities 

11.Independence & Dignity

The Legal Profession and Its Responsibilities

•Profession of law is a great profession, most ‘brilliant’ and ‘attractive’ of the peaceful professions 

•A learned profession; has to deal with variety of human relations, thus gives him special opportunities to equip himself with those qualities 

–Capacity to analyse and sift facts 

–To penetrate human mind and discover their true motives 

–To perceive and present them with directness and accuracy

•The most independent profession 

•Lawyers work is not to create disputes but when they arise, they should settle the disputes and act as peacemakers because law is concerned with preventing the disputes. 

•Art of advocacy is the art of making the worse appear the better reason because a lawyer is engaged not to express his own views but his client’s views 

•There can be no civilization without order; there can be no order without law and no law without lawyers to interpret it. 

•Profession requires great knowledge, high mental capacity and wide culture. 

•The alternative to the reign of law is chaos of jungle. 

•So long as there are quarrels to settle between parties, so long there should be tribunals to settle them. And so long lawyers and legal profession necessary in well-ordered society