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Prodyut Banerjee (Advocate (Corporate Lawyer))     08 April 2010

Only lawyers entitled to practice law?

Dear Friends and professional colleagues,

After the landmark(!) and much debated judgement of Bombay High Court that  " only advocates are entitled to practice law in India"  some questions came into my mind. As per the judgement - practice of law does not only include appearance before the Courts of Law but also include the related matters such as drafting, issue of notice etc. In India the Practicing Company Secretaries, Chartered Accountants and Cost and Works Accountants are providing services to their clients which include drafting of notice, legal opinion, drafting of petition/ opposition/rejoinders etc to different Tribunals (such as CLB, IT Tribunal, SAT etc,) as well as appearance before different Tribunals under different Legislations.

The learned Members may kindly share their views about the impact on the Bombay High Court Judgement on the same.



Learning

 8 Replies


(Guest)

Bombay High Court's view is correct. While the tribunals such as CLB, ITAT, etc., are dealing in Company Law and Income Tax Act/Direct Taxes which are specialised commercial law subjects and that are accustomed by the CAs and Company Secretaries and they being a small negligible portion of law subject, it cannot be misunderstood for application to other laws. Since Chartered Accountants, Cost Accountants and Company Secretaries whose main job is to handle Auditing, Cost Accounting, Company Law Practice and Procedures and occasionally taking up the Representation work in Tribunals (Quasi Judicial Fora) can by no stretch of imagination be construed as legal experts. While the Accounting subjects are arithmetically worked out, legal subjects cannot be done so. It needs wisdom from legal point of view, common laws of land and impact on decisions. Lawyers are nurtured in the legal ways of solving the problems. Even IAS Officers cannot solve legal problems although they may have acquaintance and in fact, they draft several legislations that are presented before the Parliament. But those legislations are properly interpreted and made perfect only by lawyers and the Courts. You said the CAs/CS are also drafting notices, pleadings, etc., but mere drafting is not sufficient without legal background. Lawyers are the leading light to the Courts of justice. Here Revenue aspect alone is dealt with by the Tribunals. Important legislations like Evidence Act and other interlinked enactments are not pressed into service in a largescale. Several decisions of the Quasi Judicial Forums are struck down by the High Courts and Supreme Court since they lack legal analysis, because they are represented by non-legal professionals. Legal wisdom through legal education is a must for solving disputes of various kinds and hence Lawyers alone can practice law in India.

Sushil Kumar Bhatia (Advocate)     14 May 2010

an advocate enrolled by state bar council can  only practice  and no other person can appear before a court where legal /law issue is involved lack of knowledge can damage rights of litigant  where any court tribunal or excutive court s have judicial or qausi judicial  procedure then only an advocate will proceed the case

Iqbal A. M. Shaikh (Advocate)     18 May 2010

Chartered Accountants, Cost Accountants and Company Secretaries are doing Unauthorized practice of law in all areas of law in fact the Ministry of Company Affairs is promoting them by not allowing the Advocates to incorporate companies.  Form 32 and form 18 which are not at alll concerned with accounting or auditing have to be verified by  Chartered Accountants, Cost Accountants and Company Secretaries.  These people who have studies law without formal education and without any expert guidance have edge over Advocates in Company Law matters as their verification is must in almost all forms except the form 1A.  The Bar Council of India and other state councils should take up the matter with Ministry of Company Affairs and stop this humiliation of Advocates.  Same way in Maharashtra the touts have been registring property documents and state machinery is promoting them.  They are non qualified people and have edge over the Advocates as they charge low fees and have connections whereby they do their work swiftly.  The Advocate fraternity should look into these matters seriously otherwise they themselves will be blamed for the state of affairs affecting their practice and work culture. 

vswaminathan   30 May 2011

By and large , I am quite in agreement with what the lawyers have said on the general proposition to the effect  that only a person SPECIALLY   'qualified' , so 'equipped' and 'enrolled' as an Advocate, is eligible to pracctise as such; to be precise, to handle / render professional advice in the several matters as specified by them- ioncluding preparing /vetting of 'legal documentation'.

I believe that, what the  'Code of Ethics'  IN PLACE, AND respectively applicable to the others , such as CAs,   themselves, clearly envisage, and in terms, lay down.

THis is a matter entailing and impacting 'public interest'. Hence, It is higfh time for the Law MInistry to mind to and take the required steps/action on a war bfooting,  to the end of bringing about  'disciplione' in its true sense, among the varying types of  professionals,   

 

vswaminathan   30 May 2011

TO ADD (with the same breath):

As late Nani A Palkhivala, who though himself being a well known/topmost legal luminary, of internastional repute at that, besides being an exemplary 'humanitarian' in its profound sense,, was never tired of lamenting, : - many of the most  worrisome  'social evils' , including 'corruptioin', in every walk of life, which have come to be noted to be on the increase , alrmingly, is entirely attributable to one and the only thing namely, - LARGE SCALE COMMERCIALISATION, unwittingly or otherwise, that has crept in into the field of, inter alia,  'professiional pracitice', of every known  /recoginised kind.

This is an aspect on which, in my sincere well considered view, each and every member of any recognised profession- he be an Advicate, or CA,, or any other, it is high time that, seriously tries to and have an 'introspection', - for betterment of the quality of 'life' , and thereby, accomplish bringing about an ideal form of  'social justice'.

rajshree (freelance)     30 May 2011

I think every individual is allowed to represent himself as party in person if he wants to. Law does not force him to hire a lawyers. If you can learn enough and wish to represent youself, you can do so. Please correct me if I am wrong?

vswaminathan   29 November 2013

Lately, i had an occasion to get back for refreshng memory  on the points of the discussion herein , albeit for a specific purpose / in a different context .

Only incidentally that has made me wonder, prompting to suggest , why the Administrator (S) of this website had to give this better frame , wth useful tools, for anyone to subscribe and put in comment on any of the posts of interest.

vswaminathan   29 November 2013

...and, to consider, if feasible and agreed, switch back to this frame.  


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