An advocate cannot hold a client’s power of attorney and plead for that client in the same matter. For firms that routinely act for non-resident clients on a power of attorney, that is a rule worth getting right — because there is a lawful way to structure it.
The practice, and the problem
Firms acting for overseas clients commonly take a power of attorney so they can act in a professional capacity — signing pleadings, affidavits and vakalatnama. The signature of a constituted attorney on those documents is treated as the party’s own signature.
The question the courts have wrestled with: can the same advocate who is the constituted attorney of a party also act and plead as the advocate on record for that party in the same proceeding?
What the courts held
In Oil and Natural Gas Commission v. Offshore Enterprises Inc. (AIR 1993 Bom 217), the Bombay High Court answered no. A constituted attorney is entitled to “act” or “appear” for a party, but has no right to “plead” in court.
The reasoning turns on the advocate’s distinct role:
- Advocates are governed by the Advocates Act, 1961 and are officers of the court, bound to act with impartiality and detachment, and not to identify personally with the client or the cause.
- A constituted attorney, by contrast, does stand in the shoes of the donor and acts as the party would.
- Under Order III Rule 4 CPC, a vakalatnama is signed by the party (or their recognised agent) in favour of the pleader — so a pleader acting as constituted attorney cannot sign a vakalatnama in their own favour, or in favour of a firm in which they are a partner.
- Where an affidavit is filed by a constituted attorney under Order XIX Rule 2 CPC, that person can be summoned for cross-examination — the very possibility of an advocate becoming a witness shows why the dual role is barred.
In short: a recognised agent is on par with the party, while an advocate must remain independent. The roles cannot merge without jeopardising — and appearing to jeopardise — the advocate’s impartiality.
The lawful workaround
Columbia Pictures Industries v. Siti Cable Network Ltd. (94 (2001) DLT 177) points to the solution. There is no dual capacity where the identities and roles of the two advocates are clearly distinct and never merge. A constituted attorney can appoint another advocate to plead for the party, provided that advocate:
- is not a partner in the constituted attorney’s firm, and
- is not on the firm’s payroll.
Merely sharing an address with the firm does not, by itself, create dual capacity. So an independent advocate — unconnected to the firm except for using its address — may lawfully plead on the client’s behalf.
The takeaway for firms
The customary practice of one advocate wearing both hats for a non-resident client is barred and should be discontinued. Structure the matter so that the constituted attorney and the pleading advocate are genuinely separate persons.
Frequently asked questions
Can an advocate be a party’s constituted attorney and also plead for them? No. A constituted attorney may act or appear but cannot plead in the same matter; the roles must be kept separate.
Why does the law prohibit this? Because an advocate must remain independent and impartial as an officer of the court, while a constituted attorney identifies with the party.
Can a constituted attorney sign the vakalatnama for their own firm? No. Under Order III Rule 4 CPC, they cannot sign it in their own favour or in favour of a firm in which they are a partner.
How can a firm structure this lawfully? Have an independent advocate — not a partner or employee of the firm — plead for the client, even if they share the firm’s address.
Legislation referred to
- The Advocates Act, 1961
- Code of Civil Procedure, 1908