Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010.
Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010.
A Bill for the establishment of the Legal Services Board and in respect of its functions; to make provision for, and in connection with, the regulation of persons who carry out the activities of legal practitioners; to make provisions for the establishment of an ombudsman for complaints against the professionals and for a scheme to consider and determine complaints against the legal practitioners; to make provision in respect of providing legal services free of charge and for connected purposes.
Be it enacted by the Parliament in the 60 year of the
, as follows: - Republic of India
1. Short title, extent and commencement.—This Act may be called The Legal Practitioners (Regulation and Maintenance of Standards in Profession Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010.
(2) It extends to the whole of
India, except the State of . Jammu and Kashmir
(3) It shall come into force on such date as the Central Government may, by notification, appoint; and different dates may be appointed for different provisions of this Act and for different States, and any reference to commencement in any provision of this Act in relation to any State shall be construed as a reference to the commencement of that provision in that State.
2. Definitions.—In this Act, unless the context otherwise requires, –
(a) “Board” means Legal Services Board constituted under this Act.
(b) “Clients” means the clients of the Legal Professionals who engaged such Legal Professionals by executing a vakalatnama / letter of authority, by whatever name it may be known.
(c) “Consumer of Legal Profession” includes the clients of legal professionals and anyone who might have recourse to legal services because of a legal issue and those who are using or are may be contemplating using services provided by the legal professionals in relation to the legal services arising out of a legal issue.
(d) “Legal Professionals” means the Advocates as defined in the Advocates Act, 1961 and includes the qualified lawyers engaged in legal practice confined to their chamber, engaged in drafting and conveyancing, practitioner of income tax and sale tax and those appearing before the relevant authorities, giving advise to the clients for a fee, gain or reward in the areas of customs, immigrations, trademark and patent services and all other professional services where legal issues are involved;
(e) “Ombudsman” means the Ombudsman appointed under this Act for redressing the grievances of the clients and consumers of Legal Professionals.
(f) “Professional Principles” include –
(i) that the Legal Professionals should act with independence and integrity;
(ii) that the Legal Professionals should maintain proper standards of work;
(iii) that the Legal Professionals should act in the best interest of their clients;
(iv) that the Legal Professionals who are authorise to appear before a court or tribunal, by virtue of being such authorisation should comply with their duty to the court / tribunal to act with independence in the interest of justice;
(v) that the affairs of clients should be kept confidential.
(g) “Prescribed” means prescribed by rules made under this Act.
(2) Any reference in this Act to any other enactment or any provision thereof shall, in relation to an area in which such enactment or provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.
THE REGULATORY OBJECTIVES
3.The Regulatory objectives. – (1) In this Act a reference to “the regulatory objectives” is a reference to the objectives of—
(a)protecting and promoting the public interest;
(b)supporting the constitutional principle of the rule of law;
(c)improving access to justice;
(d)protecting and promoting the interests of the clients of the legal practitioners;
(e)promoting healthy competition amongst the legal practitioners for improving the quality of service;
(f)encouraging an independent, strong, diverse and effective legal profession with ethical obligations and with a strong sense of duty towards the courts and tribunals where they appear;
(g)creating legal awareness amongst the general public and to make the consumers of the legal profession well informed of their legal rights and duties;
(h)promoting and maintaining adherence to the professional principles.
LEGAL SERVICES BOARD
PART – 1
4. Constitution of Legal Services Board. – (1) The Central Government shall constitute a body to be called the Legal Services Board to exercise the powers and perform the functions conferred on, or assigned to it under this Act.
(2) The Legal Services Board shall consist of –
(a) a Chairman appointed by the President of India in consultation with the Chief Justice of India and the Chairman of the Bar Council of India.
(b) a Member-Secretary appointed by the Central Government in consultation with the Chief Justice of India and the Chairman of the Bar Council of India possessing such experience and qualifications, as may be prescribed by the Central Government, to exercise such powers and perform such duties under the Chairman of the Legal Services Board.
(c) such number of other members, possessing such experience and qualifications, as may be prescribed by the Central Government, to be nominated by the Government in consultation with the Chief Justice of India and Chairman of the Bar Council of India. Out of these five members shall be the Chairmen of the State Bar Councils, representing the Northern, Southern, Western, Eastern and North-Eastern regions of the country.
(3) The Chairman of the Legal Services Board shall not, during the appointment carry on any activity relating to practice of law for or in expectation of any fee, gain or reward.
(4) While appointing members of the Legal Services Board, other than from the category of Chairman of the State Bar Councils, regard shall be had such members have experience or knowledge of in the field of –
(a) a legal professional; or
(b) imparting of legal education; or
(c) consumer affairs; or
(d) having been a Judge of the High Court; or
(e) experienced in competition law; or
(f) had been the member of a grievance redressal body at the National level or State level; or
(5) The terms of office and other conditions relating thereto, of Chairman, Member-Secretary and other members shall be such as may be prescribed by the Central Government in consultation with the Chief Justice of India and the Chairman of the Bar Council of India.
(6) The Legal Services Board may appoint such number of other employees as may be prescribed by the Central Government, in consultation with the Chief Justice of India and the Chairman of the Bar Council of India, for the efficient discharge of its function under this Act.
(7) The officers and other employees of the Legal Services Board shall be entitled to such salary and allowances and shall be subject to such other conditions of service as may be prescribed by the Central Government in consultation with the Chief Justice of India and Chairman of the Bar Council of India.
(8) The administrative expenses of the Legal Services Board including the salaries, allowances and pensions payable to the Chairman, Member-Secretary, Officers and other employees of the Legal Services Board shall be defrayed out of the Consolidated Fund of India.
(9) All orders and decisions of the Legal Services Board shall be authenticated by the Member-Secretary, members or other officers of the Legal Services Board duly authorized by the Chairman of the Board.
(10) No act or proceeding of the Central Authority shall be invalid merely on the ground of the existence of any vacancy in, or any defect in the constitution, of the Legal Services Board.
5. Arrangements for Assistance. – (1) The Board may make arrangements with such persons as it considers appropriate for assistance to be provided to it.
(2) Arrangements may include the paying of fees of such persons.
6. Committees. – (1) The Board may establish committees.
(2) Any committee so established may establish sub-committees.
(3) Only members of the Board may be members of a committee or subcommittee.
7. Proceedings. – (1) The Board may regulate its own procedure, and the procedure of its committees and sub-committees.
(2) The quorum of a committee or sub-committee must not be less than 3.
(3) The Board shall publish any rules of procedure made under this Section.
8. Quorum for the Meetings of the Board. – (1) Quorum for the meetings of the Board shall be 3.
(2) The Member-Secretary is entitled to participate in the meetings with a right to vote.
(3) In case of a division the Chairman of the Board may exercise his casting vote.
9. Delegation of Function. – (1) The Board may authorise –
(a) the Chairman, the Member-Secretary or any other Member of the Board;
(b) a Committee or sub-committee of the Board; or
(c) a member of staff appointed by the Board, to exercise on behalf of the Board, such of its functions, in such circumstances as it may determine.
10. Accounts. – (1) The Board must –
(a) keep proper accounts and proper records in relation to the accounts; and
(b) prepare in respect of each financial year a statement of accounts including the income and expenditure account and a balance sheet in such forum and in such manner as may be prescribed by the Central Government in consultation with the Comptroller and Auditor General.
(2) The accounts of the Board shall be audited by the Comptroller and Auditor General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Board concerned to the Comptroller and Auditor General of India.
11. Levy of Contribution from the Members of Legal Profession. – (1) The State Bar Councils Bar Council of India and the Legal Services Board as the case may be, shall levy an amount not exceeding Rs.25/- from the Legal Professionals by insisting an affixing adhesive stamps on the vakalatnama / letter of authorisation filed by the Legal Professionals in the Courts /Tribunals or the institutions / officers where they represent their client in the capacity of a legal professional.
(2) The Board shall from time to time by notification fix the rate of such contributions.
12. Board’s Power for Issuing Schemes & Guidelines to Promote the Regulatory Objectives. – (1) In discharging its functions for promoting the regulatory objectives, the Board may issue guidelines or schemes.
(2) The guidelines and regulations shall be made in a way –
(a) which is compatible with the regulatory objectives; and
(b) which the Board considers most appropriate for the purpose of meeting those objectives; and
(c) The Board must have regard to the principles under which the legal professional activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and
(d) any other principle appearing to it to represent the best legal professional practice.
13. Standards of Regulation, Education and Training. – (1) Notwithstanding anything contained in the Advocates Act, 1961 the Board must assist in the maintenance and development of standards in relation to –
(a) the regulation approved by the Bar Council of India in relation to the activities of the advocates; and
(b) the education and training of the legal professionals.
14. Supplementary Powers. – (1) The Board may do anything calculated to facilitate, or incidental or conducive to, the carrying out of any of its functions.
15. Annual Report. – (1) The Board shall prepare an Annual Report dealing with the discharge of Board’s functions, the extent to which the Board has met the regulatory objectives and such other matters as the Central Government may from time to time direct.
(2) A copy of the Annual Report shall be laid before both houses of Parliament.
PART – II
16. Consumer Panel. – (1) The Board shall establish and maintain a panel of persons to be known as “the Consumer Panel” to represent the interests of consumers and the clients of the legal professionals.
(2) The consumer panel shall consist of such consumers or persons representing the interest of consumers as the Board may appoint with the approval of the Central Government. The Board may appoint one of the members of the consumer panel to be the Chairman of the panel. The consumer panel shall have a fair degree of representation of both the consumers / clients of the legal professionals and those who are using or may be contemplating using the services of the legal professionals as consumers / clients.
(3) The consumer panel shall not include –
(a) a member of the Board or its staff;
(b) an Ombudsman for legal complaints or of the staff of such Ombudsman;
(c) a member of the government body or of the staff of State Bar Council / Bar Council of India; or
(d) legal professionals.
(4) The term of office and mode of removal of the Chairman and members of the consumer panel shall be similar to those of Chairman, Member-Secretary and Member of the Board.
17. Procedure of the Consumer Panel. – (1) The consumer panel may make such arrangements for regulating its own procedure, as it thinks fit for relating its procedure.
(2) The consumer panel may establish committees or sub-committees.
(3) If the services of any other person is availed of by the consumer panel or its committee, the Board may pay to that person such remuneration and expenses as the Board may determine.
18. Representations made by the Consumer Panel. – (1) Representations made by the consumer panel shall be considered by the Board.
(2) If the Board disagrees with the views expressed, or proposal made, in the representations, it must give the consumer panel a notice to that effect stating its reasons for such disagreeing.
(3) The consumer panel may publish such information as it thinks fit about any representations made by it to the Board.
(4) The Board must publish any notice it gives under sub-section (2) in respect of those representations.
19. Advice and Research Functions of the Consumer Panel. – (1) The consumer panel may, at the request of the Board –
(a) carry out research for the Board;
(b) give advice to the Board;
(c) publish such information as it thinks fit about the advice it gives and about the results of research carried out by it.
(2) The Board shall consider any advices given and results of any research carried out under this section.
(3) All expenditures in relation to the consumer panel shall be borne by the Board.
20. Ombudsman. – (1) The Board may appoint a Chief-Ombudsman at its office and Ombudsmen for each States for dealing with the complaints against the legal professionals at the State level.
(2) The State Governments shall provide the requisite staff and infrastructural facilities for running the office of the Ombudsman in each States.
21. Qualification and Selection of Ombudsman. – (1) No persons shall be appointed as Chief Ombudsman unless he has held the post of a Judge of the High Court.
(2) The Ombudsman for the State shall have held the post of a District Judge.
(3) The Ombudsman shall be selected by in consultation with the Chief Justice of the State High Court and the Chairman of the State Bar Council.
(4) The Ombudsman shall hold office for a term of five years and shall not be eligible for re-appointment.
(5) The Ombudsman may resign his office at any time by writing under his hand and address to the Chairman of the Board.
(6) The Ombudsman may be removed from his office in accordance of the provisions relating to the removal of the Chairman, Member-Secretary and members of the Board.
22. Procedure Before the Ombudsman. – (1) On receipt of a complaint relating to a legal professional, the Ombudsman shall issue notice to the legal professional concerned and also to the complainant and shall fix a date for inquiry into the complaint.
(2) The Ombudsman shall examine the documents and the witnesses, if any, on both sides and shall prepare his findings after hearing both sides.
(3) The report of the Ombudsman shall be forwarded to the Disciplinary Committee of the Bar Council of the State with a copy to the Board.
(4) The report of the Ombudsman shall contain his own findings about the allegations against the Legal Professional and the proposals for taking necessary action.
(5) The report of the Ombudsman shall be published in the manner prescribed by the Rules.
(6) The Disciplinary Committee of the Bar Council of the State shall consider the report of the Ombudsman and if such report is not accepted by the Bar Council reasons thereof shall be recorded in writing and such reasons shall be published in the manner prescribed by Rules with sufficient justification.
(7) The reasons for rejection of the recommendation of Ombudsman shall be explained in detail which it is so published.
23. Status of Ombudsman. – (1) The Ombudsman and the employees of his, shall be deemed to be public servants within the meaning of Section 21 of Indian Penal Code (45 of 1860).
STATUS OF THE BOARD
24. Status.—(1) The Board is not to be regarded –
(a) as a subordinate to any Government Department or as the agent of the Government; or
(b) as enjoying ay status, immunity or privilege as provided by any other law.
(2) The Board shall be entitled to hold and purchase movable and immovable properties for its efficient functioning and shall have a body incorporate having a perpetual succession with a common seal.
25. Disqualification. – (1) The President of
or the Central Government as the case may be may remove, Chairman or Member-Secretary or members from office who – India
(a) has been adjudged as insolvent; or
(b) has been convicted of an office which, in the opinion of the President of India or the Central Government as the case may be, involved in moral turpitude; or
(c) has become physically or mentally incapable of acting as such Chairman, Member-Secretary or members; or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as Chairman or Member-Secretary or members; or
(e) has or so abused his position as to render his continuance in office prejudicial to the public interest;
Provided that the Chairman, Member-Secretary or members shall not be removed from his office on the grounds specified in clauses (d) and (e), except on inquiry held in accordance with the procedure prescribed.
26. Procedure for Inquiry. – (1) Whenever the President of
or the Central Government is of the opinion that an allegation under clauses (d) or (e) of Section 19 is required to be inquired, they may hold an inquiry conducted by sitting judge of the High Court. India
(2) A copy of the inquiry report along with a copy of the allegations and a list of documents and witnesses shall be delivered or cause to be delivered to the Chairman, Member-Secretary or member against whom such inquiry was conducted and shall require him to submit within such time as may be allowed, a written reply or statement of his defence.
(3) If the allegations are admitted by the Chairman, Member-Secretary or members, the President or Central Government as the case ay be, record reasons and remove such person.
(4) Where the charges have been denied by the Chairman, Member-Secretary or member, the President of India or the Central Government as the case may be, appoint a sitting or retried judge of the Supreme Court of India to inquire into the truth of the allegation. A Presenting Officer may be appointed to present the case on behalf of the President of Indian or as the case may be, Central Government before the judge so appointed.
(5) The Inquiring Judge shall give opportunity to the Presenting Officer to present the case and to examine witnesses and to present evidence, if any. Thereafter the Chairman, Member-Secretary or member shall be given opportunity to present his defence.
(6) The Inquiring Judge shall have power to call witnesses and record their statements or receive evidence on affidavits or call for production of documents or other relevant records, which may be necessary for the inquiry.
(7) Inquiring Judge may submit his report within a period of six months or within such time as may be extended by the President of India, as the case may be, by the Central Government.
(8) If the President of India or, as the case may be, Central Government is satisfied that the charges are proved on the basis of the report submitted by the Inquiry Judge, the delinquent Chairman, Member-Secretary or member, as the case may be, shall be removed.
LEGAL AID TO THE FINANCIALLY WEAKER CONSUMERS.
PART – I
27. Free Legal Services to the Financially Weaker Consumers / Clients. – (1) Every Legal Practitioner shall be duty bound to give free legal services to the financially weaker consumers/clients who fall just above the income levels prescribed under Section 12(h) of the Legal Services Authorities Act, 1987.
28. The Duty of Legal Professionals to provide honest and true legal advice to the consumers/clients. – (1) Every legal professional shall provide full information regarding the legal position to consumer / client relating his case. The services of the legal professional shall be in such a manner as to give an opportunity to the consumer / client to make informed choices about the quality, access and value of the legal services he requires.
RELATIONSHIP BETWEEN THE LEGAL SERVICES BOARD WITH THE BAR COUNCILS.
29. Legal Services Board and the Bar Councils. – (1) The Legal Services Board shall have full authority to deal with the regulatory objectives in this Act and the Bar Council of India and State Bar Councils shall continue to exercise the functions assigned to them by Advocates Act, 1961.
(2) The directions of the Legal Services Board relating to the regulatory objectives of this act shall be the guiding principles in so far as functioning, performance and professional principles to be followed by all legal professionals.
(3) In discharging its regulatory functions assigned by the Advocate Act, 1961, the Bar Council of India and the State Bar Councils shall comply with the requirements of the regulatory objectives in this act.
(4) The Bar Council of India and State Bar council, shall, so far as is reasonably practicable, act in a way –
(a) which is compatible with the regulatory objectives, and
(b) which the Bar Councils consider most appropriate for the purpose of meeting those objectives.
30. Directions. – (1) This section applies if the Board is satisfied –
(a) that an act or omission of the Bar Councils has and, or is likely to have an adverse impact on one or more of the regulatory objectives, and
(b) that the Bar Council has failed to comply with any requirement imposed on it by or under this Act or any other enactment; and
(c) that the Bar Council –
(i) has failed to ensure that the exercise of its regulatory functions is not prejudiced by any of its other functions, or
(ii) has failed to ensure that decisions relating to the exercise of its regulatory functions are, so far as reasonably practicable, taken independently from decisions relating to the exercise of its representative functions.
(2) If, in all the circumstances of the case, the Board is satisfied that it is appropriate to do so, it may direct the Bar Council to take—
(a) in a case within subsection (1)(a), such steps as the Board considers will counter the adverse impact, mitigate its effect or prevent its occurrence or recurrence;
(b) in a case within subsection (1) (b) or (c), such steps as the Board considers will remedy the failure, mitigate its effect or prevent its recurrence.
(3) In a case within subsection (1)(a), before giving a direction under subsection (2) the Board must in particular consider the impact of giving the direction on the other regulatory objectives.
(4) A direction under subsection (2)—
(a) may only require the Bar Council to take steps which it has power to take;
(b) may require a Bar Council to take steps with a view to the modification of any part of its regulatory arrangements.
(5) The Board may not exercise its powers under this section so as to give a direction requiring a Bar Council to take steps in respect of a specific disciplinary case or other specific regulatory proceedings (as opposed to all, or a specified class of, such cases or proceedings).
(6) For the purposes of this section a direction to take steps includes a direction which requires a Bar Council to refrain from taking a particular course of action.
(7) The power to give a direction under this section is subject to any provision made by or under any other enactment.
(8) The Board may take such steps as it regards as appropriate to monitor the extent to which a direction under this section is being, or has been, complied with.
(9) Where the Board revokes a direction under this section, it must—
(a) give the Bar Council to which the direction was given notice of the revocation, and
(b) publish that notice.
31. Enforcement of Directions. – (1) If the Bar council failed to comply with a direction given under section 30, the Board may make an application to the High Court under this section.
(2) On an application under sub-section (1) of this Section, if the High Court decides that the Bar Council has failed to comply with the direction in question, it may order the Bar Council to take such steps as the High Court directs for securing that the direction is complied with.
32. Public Censure. – (1) If the Board is satisfied—
(a) that an act or omission of the Bar Council has had, or is likely to have, an adverse impact on one or more of the regulatory objectives, and
(b) that it is appropriate to act under this section in all the circumstances of the case.
(2) The Board may publish a statement censuring the Bar Council for the act or omission.
(3) Before publishing a statement of censure the Board shall give notice to the Bar Council that it intends to publish such a statement and setting out the terms of the proposed statement indicating the acts or omissions of the Bar Council.
(4) The notice under Section (3) shall specify that the Bar Council has 30 days time before the expiry of which the representations with respect to the proposed statement of censure may be made. (5) Before publishing the statement the Board must consider any representations which are duly made.
(6) The above procedure shall be followed in the case of any variations proposed to be made in the statement of censure.
33. Intervention Directions. – (1) The Board has power to issue directions by way of interventions in relation to any of the functions of the Bar Councils. If the circumstances mentioned in sub-section (1) of Section 32 appear in relation to such functions.
(2) If the Bar Council does not obey such directions of interventional nature, the Board may approach the High court for orders for implementation of such directions by the Bar Council.
34. Revocation of Directions. – (1) The Board may revoke at any time the directions or intervention directions issued to the Bar Council.
THE BOARD’S POWER TO REGULATE THE LEGAL PROFESSIONALS OTHER THAN THOSE COVERED BY THE ADVOCATES ACT, 1961
35. Board Powers to Function as Regulator. – (1) Until competent regulatory bodies are established by the Central Government or State Government as the case may be, the Legal Services Board shall function as the regulator for the regulatory objectives under this act for legal professionals other than those covered by the Advocates Act, 1961 as enumerated in Schedule I.
(2) The Central Government or the State Government as the case may be appoint or designate regulatory with powers of granting licence to such legal professionals.
(3) The Central Government may by notification add or delete any profession in Schedule-I.
36. The Board may encourage multi-disciplinary services for the Legal Professionals. – (1) In order to make the services of the legal professionals to be more holistic and effective, the Legal Services Board shall encourage the legal professionals to join hands with other disciplines and professions to give comprehensive services to the clients or consumers.
37. Act to have overriding effect. – (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force in any instrument having effect by virtue of any law other than this Act.
38. Power to remove difficulties. – (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:
Provided that no such order shall be made after the expiry of a period of two years from the date on which this Act receives the assent of the President.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.
39. Power of Central Government to make rules. – (1) The Central Government in consultation with the Chief Justice of India may, by notification, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: -
(a) the experience and qualifications of the Member-Secretary of the Board;
(b) the condition of service and the salary of the Chairman, Member-Secretary and members of the Board and the Ombudsman;
(c) the number of officers and other employees of the Legal Services Board and the Chief Ombudsman and other Ombudsman in the States;
(d) any other matter which is to be, or may be prescribed.
40. Laying of rules and regulations. – (1) Every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of 30 days which may be comprised in one session, or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, or both Houses agree in making any modification in the rule, or both House agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.
SCHEDULE – I
(See Section 35)
1. Qualified lawyers who are not practicing advocates, doing legal services in their Chambers.
2. Qualified lawyers engaged in drafting and conveyancing.
3. Income-Tax Practitioners.
4. Sales-Tax Practitioners.
5. Practitioners in Revenue Courts.
6. Customs clearance agents.
7. Customs and Immigration Law Practitioners.
8. Trademark attorneys / lawyers.
9. Patent attorneys / lawyers.