Advocate

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This article is about the modern legal profession. For the historical official, see Advocatus. For other uses, see Advocacy. For 'The Advocate', see The Advocate (disambiguation).
Advocate
Honoré Daumier 018.jpg
19th-century painting of advocates, by French artist Honoré Daumier
Occupation
Names advocate
barrister
Occupation type
profession
Activity sectors
law
Description
Competencies Good memory, advocacy and interpersonal skills, analytical mind, critical thinking, commercial sense
Related jobs
Lawyer, barrister, judge

An advocate is a type of professional person in several different legal systems. These include Scotland, Belgium, South Africa, India, Scandinavian jurisdictions, Israel, Brazil and the British Crown dependencies of Jersey, Guernsey and the Isle of Man. The broad equivalent in many English law-based jurisdictions is "barrister".

India[edit]

In India, the law relating to the Advocates is the Advocates Act, 1961 introduced and thought up by Ashoke Kumar Sen, the then law minister of India, which is a law passed by the Parliament and is administered and enforced by the Bar Council of India. Under the Act, the Bar Council of India is the supreme regulatory body to regulate the legal profession in India and also to ensure the compliance of the laws and maintenance of professional standards by the legal profession in the country. For this purpose, the Bar Council of India is authorized to pass regulations and make orders in individual cases and also generally.

Each State has a Bar Council of its own whose function is to enroll the Advocates willing to practice predominately within the territorial confines of that State and to perform the functions of the Bar Council of India within the territory assigned to them. Therefore each law degree holder must be enrolled with a (single) State Bar Council to practice in India. However, enrollment with any State Bar Council does not restrict the Advocate from appearing before any court in India, even though it is beyond the territorial jurisdiction of the State Bar Council which he is enrolled in.

The advantage with having the State Bar Councils is that the work load of the Bar Council of India can be divided into these various State Bar Councils and also that matters can be dealt with locally and in an expedited manner. However for all practical and legal purposes, the Bar Council of India retains with it the final power to take decisions in any and all matters related to the legal profession on the whole or with respect to any Advocate individually, as so provided under the Advocates Act, 1961.

The process for being entitled to practice in India is twofold. First, the applicant must be a holder of a law degree from a recognized institution in India (or from one of the four recognised Universities in the United Kingdom) and second, must pass the enrollment qualifications of the Bar Council of the state where he/she seeks to be enrolled. For this purpose, the Bar Council of India has an internal Committee whose function is to supervise and examine the various institutions conferring law degrees and to grant recognition to these institutions once they meet the required standards. In this manner the Bar Council of India also ensures the standard of education required for practicing in India are met with. As regards the qualification for enrollment with the State Bar Council, while the actual formalities may vary from one State to another, yet predominately they ensure that the application has not been a bankrupt /criminal and is generally fit to practice before courts of India.

Enrollment with a Bar Council also means that the law degree holder is recognized as an Advocate and is required to maintain a standards of conduct and professional demeanor at all times, both on and off the profession. The Bar Council of India also prescribes "Rules of Conduct" to be observed the Advocates in the courts, while interacting with clients and even otherwise.

All Advocates in India are at the same level and are recognized as such. Any distinction, if any, is made only on the basis of seniority, which implies the length of practice at the Bar. As a recognition of law practice and specialization in an area of law, there is a concept of conferral of Senior Advocate status. An Advocate may be recognized by the Judges of the High Court (in case of an Advocate practicing before that High Court) or by the Supreme Court (in case of the Advocate practicing before the Supreme Court). While the conferral of Senior Advocate status not only implies distinction and fame of the Advocate, it also requires the Senior Advocate to follow higher standards of conduct and some distinct rules. Also, a Senior Advocate is not allowed to interact directly with the clients. He can only take briefs from other Advocates and argue on the basis of the details given by them.From the year 2010 onwards a mandatory rule is made for lawyers passing out from the year 2009-10 to sit for an evaluation test named AIBE ( All India Bar Exam ) for one to qualify as an advocate and practice in the courts

Further, under the Constitutional structure, there is a provision for elevation of Advocates as judges of High Courts and Supreme Court. The only requirement is the Advocate must have a ten years standing before the High Court(/s) or before the Supreme Court to be eligible for such. (Article 217 and 124 of the Constitution of India for High Courts and Supreme Court respectively)

Pakistan[edit]

Four levels of Advocate exist in Pakistan:

Advocate[edit]

The first level is the Advocate, who is eligible to practice in the district courts or lower courts in respective province. One can qualify as an Advocate after completion of a law degree (LL.B of three years),six months pupillage/apprenticeship under a senior Advocate in his/her chambers and thereafter to go for Bar admission test,the Bar Council of the relevant province examine him/her that he is fit or not to become as an Advocate and is not convicted. After passing the multiple choice question examination and interview conducted by provincial Bar Council, the Bar Council will issue him/her the license for appearing before the Courts.

Advocate High Court[edit]

Advocate High Court is the second level, and is eligible to practice in the High Courts of Pakistan and below. A license is obtained after successful completion of two year's practice in the lower courts by applicant, which is reviewed by a body of the relevant provincial Bar Council. Most applications after successful completion of the requirement, are accepted.

Advocate Supreme Court[edit]

Advocate Supreme Court is the third level. After successful completion of ten years of practice in the High Courts by applicant,the panel of members of Pakistan Bar Council and one judge of the Supreme Court of Pakistan,review the application.(Before 1985 the requirement was successful completion of five years practice in the High Courts of Pakistan.) Over fifty percent of applications are accepted, after successful completion of the requirement. An unsuccessful application in one year, does not bar the candidate from re-applying in the next judicial year.

Senior Advocate of Supreme Court of Pakistan[edit]

The highest level is the Senior Advocate Supreme Court. It is Pakistan's title equivalent to Queen's Counsel in the United Kingdom. After at least fifteen years of practice, by invitation or by an application to a panel of Supreme Court Judges headed by the Chief Justice of Pakistan, one can become Senior Advocate of Supreme Court of Pakistan. Very few applications are accepted and even fewer invitations are made. Attorneys General are usually invited by the Supreme Court on appointment, to the office. So are some notable High Court judges who upon retirement choose to practice before the Supreme Court, where they are still eligible to do so.

Scandinavia (Denmark, Norway and Sweden) and Finland[edit]

The Scandinavian countries and Finland have a united legal profession, which means that they do not draw a distinction between lawyers who plead in court and those who do not. To get an official recognition with an advocates title, the candidate must have a legal degree, that is, completed ca. 5–6 years of legal studies, and in addition worked for some time (around 2 – 5 years) under the auspices of a qualified advocate and have some experience from court. When qualified, the candidate may obtain a license as an advocate, in all the Scandinavian languages: advokat. In Finland advokat is the Swedish title for such a qualified lawyer (the equivalent title in Finnish being asianajaja). However, one does not necessarily have to be an advocate to practice law. In Sweden, for example, any adult can practice law and represent a party in court without any prior approval, training, licence or advocate title.

In English, the Scandinavian title of advokat is interchangeably also translated as barrister, lawyer or attorney-at-law.

South Africa[edit]

In South Africa,[1] there are two main branches of legal practitioner: attorneys, who do legal work of all kinds, and advocates, who are specialists; see Attorneys in South Africa. In general, advocates (also called 'counsel') are 'briefed' by attorneys when a specialist skill in court based litigation, or in research into the law is required; advocates have no direct contact with clients, and are said to be in a 'referral' profession. See split profession.

The key formal distinction, however, is the different rights with regard to the courts in which they may appear. Advocates have the right to appear in any court, while attorneys have the right to appear only in the lower courts. (And, under certain conditions, can acquire the right of appearance in the superior courts, by applying to the registrar of the provincial division of the relevant High Court.)[2] A further distinction is that while attorneys practice in partnership, advocates are individual practitioners and never form partnerships; practice in "Chambers" and / or "Groups" is standard.[3]

The requirements to enter private practice as advocates (Junior Counsel) are to hold the LL.B. degree, and to become a member of a Bar Association by undergoing a period of training (pupilage) for one year with a practicing Advocate, and to sit an admission examination. On the recommendation of the Bar Councils, an advocate "of proven experience and skill" with at least ten years experience, may be appointed by the President of South Africa as a Senior Counsel (SC; also referred to as a "silk"). See Legal education in South Africa.

When a junior advocate is viewed in the eyes of any particular Senior Counsel (Silk) as having commended him or herself in the profession so as to warrant recognition for excellence, he or she is commonly rewarded with a traditional gift of a red brief bag.

Sri Lanka[edit]

In Sri Lanka (formally Ceylon) till 1973 Advocate was a practitioner in a court of law who is legally qualified to prosecute and defend actions in such court on the retainer of clients. Advocates had to pass the HSC exam and enter the Sri Lanka Law College and follow the relevant course. Following changers in 1973 the title was replaced with Attorney at law. The current equivalent to an advocate is a counsel who is a trial lawyer distinguished from an instructing attorney.

Brazil[edit]

In Brazil, the bar examination occurs nationally in March, August and December. These examinations are unified and organized by the Order of Attorneys of Brazil. After 5 years in law school, Brazilian law students take the Bar exam, that consists of 2 phases: the multiple choice test and written test, without further requirements.

The Constitution of Brazil applies restrictions on professional practice of law embodied in the fulfillment of the requirements and qualifications they require, which may include, in addition to graduation formal submission of the applicant in the proficiency tests. And the Order exam is tied to Law No. 8609 of 4/7/1994:

"Article 8: For registration as an attorney is needed: IV - To pass the Examination of the Order;"

Within its powers expressly granted by the Constitution, the ordinary legislator demanded that whoever wishes to pursue the legal profession, possess the degree of Bachelor of Law and approval of Examination of Order, whose preparation and implementation is done by their own class. As seen, no unconstitutionality in sight. The Constitution itself provides for the restriction. Nor is there any illegality, since the Statute of Law requires the examination.

Moreover, the argument that the exam is legitimate, but would be charging a very high level of legal knowledge, similar to competitions such as the judiciary or prosecutors, absolutely unfounded. The examination has been based for several years for practical intermediate level, some more difficult, others extremely simple, and absolutely commonplace themes and whose knowledge is absolutely necessary and indispensable to anyone who intends to practice law.

For comparison, in other Civil law countries, such as France and Italy, the method of the Bar examination is more difficult than in Brazil. The French situation is that concluded the law school, attend a compulsory course of 1 year and conduct a mandatory stage of 2 years, after completion of such compulsory course. Totaling of 8 years of study of law. The Italian situation is after graduation is essential that the applicant make a compulsory training of legal practice of 2 years. After the biennium, as evidenced by the practice participation in hearings and dispensing of pleadings, the applicant may submit to the examination. This consists of written and oral tests. Approved, can take the oath and sign up for organ class. However, the capacity is not total, due the Italian statute to demand 12 years of advocacy for candidacy before the Corte di Cassazione (Court of Cassation) and other High Courts (Law 27/1997).[4]

United Kingdom and Islands[edit]

England and Wales[edit]

In England and Wales, advocates and proctors practiced civil law in the Admiralty Courts and also, but in England only, in the ecclesiastical courts of the Church of England, in a similar way to barristers and attorneys or solicitors in the common law and equity courts.

Advocates, who formed the senior branch of the legal profession in their field, were Doctors of Law of the Oxford, Cambridge, or Dublin and Fellows of the Society of Doctors' Commons.

Advocates lost their exclusive rights of audience in probate and divorce cases when the Crown took these matters over from the church in 1857, and in Admiralty cases in 1859. The Society of Advocates was never formally wound up, but its building was sold off in 1865 and the last advocate died in 1912.

Barristers were admitted to the Court of Arches of the Church of England in 1867. More recently, Solicitor Advocates have also been allowed to play this role.

Scotland[edit]

Faculty of Advocates[edit]

An advocate's wig in front of a judge's wig, Parliament Hall, Edinburgh
Main article: Faculty of Advocates

Advocates are regulated by the Faculty of Advocates in Edinburgh. The Faculty of Advocates has about 750 members, of whom about 460 are in private practice. About 75 are Queen's Counsel. The Faculty is headed by the Dean of the Faculty who, along with the Vice-Dean, Treasurer, Clerk are elected annually by secret ballot.

The Faculty has a service company, Faculty Services Ltd, to which almost all advocates belong, that organises the stables and fee collection. This gives a guarantee to all newly called advocates of a place. Until the end of 2007 there was an agreement with the Law Society of Scotland, which is the professional body for Scottish solicitors, as to the payment of fees, but this has now been replaced by the Law Society. It remains the case that advocates are not permitted to sue for their fees, as they have no contractual relationship with their instructing solicitor or with the client.[5] Their fees are honoraria.

Advocates wear wigs, white bow-ties (or falls in the case of senior counsel), straps and gowns as dress in court.

Becoming an advocate[edit]

The process of becoming an advocate is referred to as devilling. All Intrants will be Scottish solicitors, i.e. hold a Bachelor of Laws degree and the Diploma in Legal Practice, and must have completed the traineeship of two years (which in some cases may be reduced to eighteen months) required to qualify as a solicitor; or else will be members of the Bar in another common law jurisdiction.

Admission to the Faculty of Advocates[edit]

At the end of the devilling period, a devil's admission to the Faculty is dependent on certification by the principal devilmaster that the devil is a fit and proper person to be an advocate and that the devil has been involved in a wide range of work in the course of devilling. A devil's competence in a number of aspects of written and oral advocacy is assessed during devilling, and if a devil is assessed as not competent, he or she will not be admitted to the Faculty. Further details of this process can be found in the assessment section.

Recent developments[edit]

In recent years, increasing numbers of advocates have come to the Scottish Bar after some time as solicitors, but it is possible to qualify with a law degree, after twenty-one months traineeship in a solicitor's office and almost a year as a 'devil', or apprentice advocate. There are exceptions for lawyers who are qualified in other European jurisdictions, but all must take the training course as 'devils'.

Until 2007, a number of young European lawyers were given a placement with advocates under the European Young Lawyers Scheme organised by the British Council. They are known as 'Eurodevils', in distinction to the Scottish 'devils'. This scheme was withdrawn by the British Council. In January 2009, a replacement scheme began.

Lawyers qualified in other European Union states (but not in England and Wales) may have limited rights of audience in the Scottish supreme courts if they appear with an advocate, and a few solicitors known as 'solicitor-advocates' have rights of audience, but for practical purposes advocates have almost exclusive rights of audience in the supreme courts - the High Court of Justiciary (criminal), and the Court of Session (civil). Advocates share right of audience with solicitors in the sheriff court and Justice of the Peace Court.

It used to be the case that Advocates were completely immune from suit etc. while conducting court cases and pre-trial work, as they had to act 'fearlessly and independently'; the rehearing of actions was considered contrary to public interest; and Advocates are required to accept clients, they cannot pick and choose. However, the seven-judge English ruling of Arthur J.S. Hall & Co. (a firm) v. Simons 2000 (House of Lords)[6] declared that none of these reasons justified the immunity strongly enough to sustain it. This has been followed in Scotland in Wright v Paton Farrell (2006) obiter[7] insofar as civil cases are concerned.

Jersey and the Bailiwick of Guernsey[edit]

The Bailiwick of Jersey and the Bailiwick of Guernsey (Guernsey, together with the two semi-autonomous Islands of Alderney and Sark, and together with other Islands) are two separate legal jurisdictions, have largely two different sets of laws and have two separate, but similar, legal professions. In both jurisdictions, advocates—properly called Advocates of the Royal Court—are the only lawyers with general rights of audience in their courts.

To be eligible to practise as an advocate in Jersey, it is necessary first to have a law degree from a British university or a graduate diploma in law and to have qualified as a recognized legal professional in England and Wales, Scotland or Northern Ireland.[8] Thereafter, a candidate must undertake two years of practical experience in a law office dealing with Jersey law, enroll on the Jersey Law Course provided by the Institute of Law, Jersey[9] and pass examinations in six subjects. Alternatively, a person may apply to become a Jersey advocate two years after qualifying as a Jersey solicitor.

To become an advocate in Guernsey, one has to possess a valid law degree or diploma, plus a qualification as an English barrister or solicitor, or a French avocat. They must then study for the Guernsey Bar. Three months of study of Norman law at the Université de Caen (University of Caen) is required; this is no longer required for entry into the legal profession in Jersey.

Guernsey Advocates dress in the same way as barristers, but substitute a black biretta-like toque for a wig, while those in Jersey go bare-headed. Advocates are entitled to prefix their names with 'Advocate'; e.g. Mr Tostevin is called to the Guernsey Bar and is henceforth known as Advocate Tostevin.

The head of the profession of advocate in each Bailiwick is called the Bâtonnier.

Isle of Man[edit]

Advocates are the only lawyers with rights of audience in the courts of the Isle of Man. An advocate's role is to give advice on all matters of law: it may involve representing a client in the civil and criminal courts or advising a client on matters such as matrimonial and family law, trusts and estates, regulatory matters, property transactions and commercial and business law. In court, advocates wear a horsehair wig, stiff collar, bands and a gown in the same way as barristers do elsewhere.

To become an advocate, it is normally necessary to hold either a qualifying law degree with no less than lower second class (2:2) honours, or else a degree in another subject with no less than lower second class (2:2) honours complemented by the Common Professional Examination. It is then necessary to obtain a legal professional qualification such as the Bar Professional Training Course or the Legal Practice Course. It is not, however, necessary actually to be admitted as an English barrister or solicitor to train as an advocate.

Trainee advocates (as articled clerks are now more usually known) normally undertake a period of two years’ training articled to a senior advocate; in the case of English barristers or solicitors who have been practising or admitted for three years this training period is reduced to one year. Foreign lawyers who have been registered as legal practitioners in the Isle of Man for a certain period of time may also undertake a shorter period of training and supervision. During their training, all trainee advocates are required to pass the Isle of Man bar examinations, which include papers on civil and criminal practice, constitutional and land law, and company law and taxation, as well as accounts. The examinations are rigorous and candidates are limited to three attempts to pass each paper.

Senior English barristers are occasionally licensed to appear as advocates in cases expected to be unusually long or complex, without having to pass the bar examination or undertake further training: they are permitted only to act in relation to the matter for which they have been licensed. Similarly, barristers and solicitors employed as public prosecutors may be licensed to appear as advocates without having to pass the bar examination or undertake further training: they are permitted only to act as such only for the duration of that employment.

The professional conduct of advocates is regulated by the Isle of Man Law Society, which also maintains a library for its members in Douglas. While advocates in the Isle of Man have not traditionally prefixed their names with 'Advocate' in the Channel Islands manner, some advocates have now started to adopt this practice.

Netherlands[edit]

In Dutch law, the law relating to the Advocates is the Advocates Act. Under the Act, the Dutch bar assoication (Orde van Advocaten) regulates the professional conduct and the professional education of the advocates.

A Dutch advocate has to complete Dutch bar education and fulfill certain requirements (which may vary among the various judicial regions within the Netherlands) under the supervision of a senior advocate for a period of at least three years, called the 'advocaat-stage'. After completing the bar education exams, the junior advocate is admitted unconditionally to the Dutch bar.

See also[edit]

References[edit]

  1. ^ "sabar.co.za". sabar.co.za. 1998-11-16. Retrieved 2013-06-11. 
  2. ^ "LAW PROFESSIONALS", Department of Labour South Africa
  3. ^ "johannesburgbar.co.za". johannesburgbar.co.za. 2001-04-08. Retrieved 2013-06-11. 
  4. ^ Brazilian Bar Examination - French and Italian Bar Examinations
  5. ^ [1]
  6. ^ Law Lords Department (2000-07-20). "House of Lords - Arthur J.S Hall and Co. v. Simons (A.P.) Barratt v. Ansell and Others (Trading As Woolf Seddon (A Firm) Harris v. Scholfield Roberts and Hill (Conjoined Appeals)". Parliament.the-stationery-office.co.uk. Retrieved 2013-06-11. 
  7. ^ "TREVOR RUSH McCAFFERTY WRIGHT v. PATON FARRELL+ROBERT PATON+PETER FARRELL, 10 February 2006, Lord President". Scotcourts.gov.uk. Retrieved 2013-06-11. 
  8. ^ Advocates and Solicitors (Jersey) Law 1997
  9. ^ "Home | Institute of Law". Lawinstitute.ac.je. Retrieved 2013-06-11. 

External links[edit]