Professional Ethics and Lawyering Skills Notes

 Unit - 1 Professional Conduct

1.1 Concept

Professional conduct refers to the skills, art, or pure behavior based on high moral values and standards adopted to keep one's profession or business disciplined and dignified. Every person is involved in some profession, business, employment, or field of work for their livelihood. This is because business is a means of daily livelihood for human beings. Without business, it becomes difficult for people to make a daily living. Therefore, business is considered the backbone of the economic development of every country. To run a business permanently and continuously to achieve goals, certain policies, rules, values, conducts, and principles must be followed. Otherwise, success cannot be achieved in the professional field. The policies and rules used to operate a business are professional conducts.

1.2 General Principles of Professional Ethics

Different professions and businesses have specific conditions, values, and principles. The values and principles required to efficiently operate any profession or business are called the principles of professional ethics. Every profession or business should be carried out by embracing certain principles and ethics. This is because principles and ethics stand higher than the law itself. There is no question of anyone refuting them. Various types of professional principles have been formulated in the profession. Among them, some principles can be mentioned as follows:

a.      Principle of Honesty

b.      Principle of Confidentiality and Trust

c.      Principle of Integrity / Dedication

d.      Principle of Disciplinary Power

e.      Principle of Fair Treatment

f.        Principle of Appropriateness / Justification

g.      Principle of Proper Care / Supervision

h.      Principle of Responsibility towards the State

i.        Principle of Independent Professional Decision

j.        Principle of Representation

k.      Principle of Accurate Information

l.        Principle of Proper Relationship

 

1.3 Professional Responsibility

Whichever profession or business one undertakes, one must remain within certain rules and conditions of that profession or business. To make the legal profession dignified and organized, legal provisions alone are not sufficient. When society and the nation accord a high and respected status to the legal profession by addressing practitioners as experts of law, messengers of justice, scholars, and social activists, it is equally necessary for every legal practitioner to be responsible for maintaining the prestige of the legal profession. Legal professionals are not only an integral part of the administration of justice and guardians of justice, but being a member of society, the consequences of their wrong actions affect the entire society.

 

1. Responsibility towards clients

·        A legal practitioner must always behave respectfully and politely towards the client.

·        Representation of a client must be done solely with the objective of providing legal assistance.

·        A legal practitioner must provide competent and efficient service to the client.

·        Cases that are beyond one's knowledge, skill, and competence should not be accepted.

·        The client must be provided with updated information regarding case documents, written pleadings, hearing dates, and all relevant subject matters.

·        Meetings with the client should be held only as necessary and strictly regarding the subject matter of the case.

·        Service fees must be made clear to the client at the very beginning of the case; additionally, professional and long-term relationships should be considered when determining the fee.

2. Responsibility towards opposite party

·        One must not show anger, counter-accusations, blame, or malice towards the opposing party.

·        One must not act through written or spoken words with the intention of defaming or obstructing the opponent's honor, profession, or work.

·        One must not engage in actions such as provoking, coaxing, or threatening the opposite party, their witnesses, or stakeholders outside the boundaries of the law.

·        Arguments or interactions that occurred with the opposing legal practitioner inside the courtroom must not be criticized or commented upon outside the courtroom in any manner.

3. Responsibility towards court

·        One must not use any words that affect the honor and dignity of the court.

·        One must not make comments that disrupt or disturb public trust in the court.

·        One must appear in court at the time designated by the state and in a civilized attire.

·        One must not present false statements and facts before the honorable court knowingly.

·        A legal practitioner must not knowingly cause any evidence or documents to be falsely prepared for submission before the court.

·        One must not make baseless and groundless claims that insult the court or the judge.

4. Responsibility towards society and state

·        One must not perform any action by distorting or wrongly applying the existing rules and laws of the state.

·        One must contribute to society and the state in making policies and rules, as well as in the fields of knowledge, science, technology, education, and business.

·        One must not demand money from clients for matters prohibited by law or through fake bills.

·        One must not assist a judicial organ or its employees in a manner adverse to the law.

5. Other responsibility

·        One must not enter into any partnership or perform any action that is contrary to the rights provided by law.

·        If pressure, bias, or accusations that violate rules come from anyone, one must lawfully step away from the responsibility of that case.

·        A legal practitioner must not participate in any activity considered contrary to the law.

·        If notices, information, documents, etc., received about one's client must be lawfully returned to the relevant authority or party, they should be returned only after keeping a copy whenever possible.

·        One must not maintain overly intimate, physical relationships, or contact with clients and their close relatives.

 

1.4 Bar-Bench Relationship

There is frequent contact between legal practitioners, who operate their profession independently, and judges, who are appointed to carry out their official responsibilities in court on behalf of the state. The "Bar" is the common organization of lawyers who practice law independently. "Bar" refers to the Nepal Bar Association as well as the entire community of lawyers. On the other hand, "Bench" refers to the courtroom of the court, all the judges, and the court system as a whole. While the court is a government mechanism that adjudicates justice or provides justice to the public on behalf of the state, the Bar is the common organization or association of professionals practicing law independently. There is an interdependent relationship between these two organs, the Bar and the Bench.

 

1.5 Professional Code of Conduct Provisions in Existing Law

Although the history of legal practitioners in Nepal is not very long, practices based on intellectuality and religious beliefs are primarily found in the form of code of conduct. For the first time in Nepal, the Legal Practitioners Act, 2015 (1958) Although it arranged provisions for the conduct of legal practitioners, it failed to perform work according to the demands of time in terms of keeping professional conduct and dignity intact, leading to the realized need for an alternative. Consequently, the Code of Conduct for Legal Practitioners, 2051 was implemented to make it timely, dignified, and well-managed along with disciplinary arrangements for legal practitioners. Therefore, every legal practitioner must compulsorily comply with the following professional conducts:

a.      A legal practitioner must not perform any act contrary to the basic principles of morality.

b.      One must not incite or encourage a client to file a false lawsuit.

c.      One must not create or file a lawsuit with the intent to cause trouble or seek revenge against anyone.

d.      One must not directly or indirectly non-cooperate with the court during the process of concluding a case.

e.      One must not misuse or cause the misuse of the judicial process.

f.       One must not prevent a client from making a truthful statement or deposition.

g.      One must not spread any kind of false propaganda regarding work proceedings related to the administration of justice.

h.      When returning a case due to an inability or unsuitability to handle it, it must generally not be returned in a manner that leaves the client without an alternative legal practitioner.

i.        One must not misappropriate or embezzle the funds of organizations or associations.

j.        One must appear in court at the scheduled time, attend in full uniform including the black coat, refrain from casting blame, or holding anger, rage, or malice towards the court and the opposing legal practitioner, and towards court employees maintain cordial behavior, speak politely, and speak appropriately when it is one's turn. Such rules of discipline must not be broken.

Remaining Code of Conduct Clauses

a.      One must not knowingly plead or cite invalid precedents in court to benefit a client. This includes repealed laws, pre-amended laws, or laws inapplicable to the case.

b.      One must not knowingly present facts during arguments that are not part of the case file (misil).

c.      One must not act as a legal practitioner in a case involving a document or deed where they themselves are a witness.

d.      One must not breach the confidentiality of information provided by the client for the case.

 

1.6 Investigation and Other Disciplinary Actions for Misconduct

If any legal practitioner is found to have violated the code of conduct mentioned in clauses (bha) to (ba) of sub-rule (1) of Rule 3 of the Legal Practitioners Code of Conduct, 2051, as detailed below, or if it is decided to suspend them from practicing law for a specific period. If a legal practitioner is found to have violated the code of conduct again after already receiving a punishment of certificate suspension, their professional license (certificate) shall be cancelled.

a.      One must not personally draft pleadings or represent arguments for both the plaintiff/petitioner and the defendant/respondent in the same case. Additionally, one must not knowingly cause any legal practitioner, scribe (lekhandas), or other person working with them to draft or argue such cases.

b.      One must not create promissory notes (tamasuk), contracts, or deeds on a blank signed paper (lifama) provided by the client to bring personal benefit or cause harm to the client.

c.      One must not collude with the opposite party to damage or destroy original documents provided by the client, rendering them invalid as evidence or useless.

d.      One must not provide documents or other evidence given by the client to the opposing party with the intent to benefit the opponent.

e.      One must not commit or cause the commission of corruption.

f.       One must not commit any criminal offense involving moral turpitude.

 

Unit - 2: Practical Writing Skills Related to Drafting, Advocacy, and Domestic Deeds in Nepal

2.1 Legislative Drafting

Drafting is an integral part of a legal practitioner's daily work. It is considered one of the most important necessary skills required for a legal practitioner. No matter which legal field a practitioner works in, they must draft various types of written documents. Therefore, professionals wishing to be involved in this field must spend a large part of their professional life doing drafting work. A major portion of the services provided by a legal practitioner is related to drafting. In the process of preparing a draft, any written document's For this reason or for the purpose of making laws, a drafter must have varied knowledge, expertise, skills, and detailed information about the related laws. Along with the knowledge of law regarding draft preparation, one must carefully study and research the subject matter, and prepare the draft within the format prescribed by law.

2.1.1 General Principles of Legislative Drafting

Whatever the task or subject matter may be, execution is carried out by remaining within its own specific values, norms, and principles. Of such principles proper use helps in achieving goals. Similarly, certain specific principles must be followed when preparing drafts of legislative documents. Drafts of documents or laws made without compulsorily following these principles and practices are not complete. Therefore, the basic norms and principles that must be included in every law are mentioned while drafting that law itself. Generally, the following principles are adopted when drafting legislative documents:

(A) Drafting of an Act (Ainna)

        i.          Mention the name of the Act at the very beginning.

       ii.          Preamble – Write a preamble mentioning the purpose and reasons for issuing the Act, and also mention the name of the authority issuing the Act at the end of the preamble.

      iii.          Mention the short title of the Act and the date of commencement of the Act.

     iv.          Mention the territorial or jurisdiction area where the Act applies.

      v.          Write definitions for complex and ambiguous words written in the Act.

     vi.          Mention the provisions of rights, authorities, and duties managed by the Act (Substantive provisions). Mention the administrative structures, meaning the bodies implementing the Act.

    vii.          Mention procedural provisions. Mention procedural matters such as applications, appellate bodies, limitation periods (hadyamyad), locus standi (hakdaiya), etc.

   viii.          Mention matters regarding fines, penalties, and punishments.

(B) Drafting of Rules, Bylaws, Directives, Orders, etc.

While the government makes Acts by remaining under the Constitution, which is the fundamental law of the country, the Act makes rules, meaning regulations, by exercising the power granted by the Act in a manner that does not conflict with the Constitution and the Act itself. The principles adopted while drafting an Act must also be followed when drafting regulations. Regulations are made to fulfill the objectives of the Act, which must contain detailed provisions on the related subject matter. Therefore, even when drafting such regulations, subject-matter experts and legal scholars are required. The state also gives the responsibility of drafting legislative documents to those legal practitioners who are considered to be highly proficient in drafting such documents.

General Principles of Legislative Drafting are as follows:

1. Principle of Organized Structure
2. Principle of Clarity
3. Principle of Effectiveness
4. Principle of Conciseness
5. Principle of Subject-matter Precision/Detail
6. Principle of Certainty
7. Principle of Constitutional Supremacy
8. Principle of Natural Justice
9. Policy Clarity

 

2.1.2 Legislative Drafting Skills and Law

a.      The paper size must be A4.

b.      Writing must leave a margin of 2 inches on the right edge, 4 inches at the top of the first page, 2 inches from the second page onwards, and 1 inch at the bottom of the paper.

c.      Based on the related law, the claim or demand must be clearly stated and specified.

d.      When mentioning monetary amounts in the document, they must be clearly stated in both figures and words so they are easily understood.

e.      One must not write anything purely based on guesswork or speculation without knowing the facts.

f.        Whichever document or deed is being drafted, it must be written strictly within the format prescribed for that specific document.

g.      One must not forget to include at least 2 witnesses in the document and obtain their signatures/thumbprints. The name and certificate number of the drafter who prepared the document must also be written, signed, and certified.

 

2.2 Documents to be Presented in Court on Behalf of the Plaintiff and Defendant in Civil and Criminal Cases, and Judgment Documents

Important documents used in the course of criminal cases:

Among the various branches of law, criminal law is considered one of the most important. Out of the two main systems of the criminal justice system, Nepal follows the prosecutorial/adversarial system. In this system, the police conduct the investigation and inquiry of the case, and accordingly, the government attorney files the charge sheet (abhiyog patra) in court.

Thus, criminal cases are also categorized into two types: state-prosecuted (sarkarwadi) and individual-prosecuted (vyaktivadi). Between these two types of cases, state-prosecuted cases are considered to be of a serious nature. The criminal case procedure adopted by Nepal is highly process-oriented. The criminal case procedure followed in Nepal is as follows:

a.      Registration of First Information Report / FIR (Jaheri Darta)

b.      Charge Sheet (Abhiyog Patra)

 

2.3 Domestic Deeds (Conveyancing)

Practical Domestic Deeds / Conveyancing Skills: In our daily affairs, documents and deeds have to be prepared for various types of transactions and activities. Such daily Various documents related to daily transactions and affairs are called practical domestic deeds (gharsayarka vyavaharik likhat). This is a foundational quality that every legal practitioner must possess in their initial stages. Among the various skills a legal practitioner must have, practical domestic conveyancing is indispensable for professionalism. It is an art considered important for handling various known and unknown situations that arise in daily life. Every legal practitioner must sit in their office and prepare drafts for various types of deeds and documents.

While writing these documents, they must be drafted keeping in view general rules and arrangements, which are mentioned below:

·        Names, surnames, addresses, and three generations of ancestry (teenpuste) of both parties must be clearly disclosed in the documents.

·        The purpose for which the document is being made (the exact reason for the deed) must be clearly specified.

·        Complete details regarding the monetary amount, value, land/property being transacted, or the rights, authorities, and liabilities being relinquished must be disclosed.

·        Conditional terms regarding whether interest will be taken or not, or what kind of liability will be created, must be clearly mentioned.

·        Matters regarding alternative or subsequent liabilities if the work is not completed according to the agreed terms must be disclosed.

·        It must state clearly that "this document has been written of my own free will and consent, and has not been written under anyone's pressure, fear, threat, intimidation, or coercion."

·        The document must state that witnesses have been kept at the bottom, margins, or in the schedule (tapsil). Additionally, the names, addresses, and ages of at least 2 witnesses must be clearly written in the margins or schedule. The signatures of the witnesses, the drafter, and the main parties must all be obtained.

1. Deed of Sale (Bikrinama)
2. Leasing and Contract (Leasing tatha Karar)
3. Gift Deed and Will (Bakaspatra tatha Ichhapatra)
4. Adoption Deed (Dharmaputra ko Likhat)
5. Deed of Property Exchange (Sattapatta ko Likhat)
6. Deed of Partition and Reunion of Joint Family/Kitchen (Mano Chhuttiyeko ra Jodiyeko Likhat)
7. Mortgage Deed / Hypothecation Bond (Dristibandhak Tamasuk – loan secured by property collateral without transferring possession)
8. Unsecured Promissory Note (Kapali Tamasuk – loan deed executed without any property collateral)
9. Guarantee Contract (Jamanat Karar)
10. Promissory Note (Pratigya Patra)
11. Power of Attorney (Adhikrit Warisnama)
12. Indenture and Deed Poll (Indenture ra Deed Poll)

 

Unit - 3: Advocacy Skills in Nepal

3.1 Concept and Rules of Advocacy

Advocacy is an art. It is a subject that improves through continuous practice. Therefore, it is necessary to keep practicing constantly. A person who performs good advocacy needs to possess certain qualities. These include personality, linguistic knowledge, linguistic purity, reasoning ability, the ability to debate respectfully, and self-confidence. Proficient advocacy helps the court reach the correct decision.

A person practicing advocacy must keep their prior information on the facts of the case fully updated. This makes it easier for them to advocate until the conclusion of the case. Remembering the facts, dates, time, and location of the case makes pleading much easier. Since advocacy is a subject strictly based on facts and evidence, the practitioner must possess special expertise regarding them.

Developing the ability to adapt oneself over time is another important factor. It is essential to observe how seriously the judge takes your presentation. The advocate must adjust their approach accordingly.

While arguing, evaluating the courtroom environment and presenting oneself accordingly is highly important. Engaging in tactful behavior as necessary is also crucial. However, cleverness must never be displayed in a manner that covers up or distorts reality.

 

Advocacy Skills of Legal Practitioners

(1) Professional Code of Conduct

There are specific conducts and rules that legal practitioners must follow, and compliance with them is mandatory. Fully complying with the professional code of conduct is a fundamental rule of advocacy. Every legal practitioner must adhere to the Legal Practitioners Code of Conduct, 2051 (1994). Section 3 of the said Code of Conduct outlines the professional conduct expected of a legal practitioner. It specifies how their professional behavior should be and what types of behavior are permitted. Furthermore, Section 7 of the same Code of Conduct explicitly defines the punishments applicable if an individual engages in prohibited conducts or fails to comply with the prescribed behaviors. Therefore, every legal practitioner must mandatorily comply with these designated conducts; failing to do so makes them liable to punishment.

(2) Professional Qualities and Efficiency

1. Patience to listen carefully and attentively to the client's words.
2. Conducting a thorough study and analysis of the case facts from beginning to end.
3. Studying and analyzing any problem in a meticulous and detailed manner.
4. Making proper use of the law and existing legal precedents (najir).
5. Always working from one's office, and performing the duties in a prompt, swift, and reliable manner.
6. Appearing before the Bench in the prescribed uniform and at the designated time, and presenting oneself in a civilized, polite, concise, point-wise, and relevant manner when it is one's turn.
7. Understanding the judge's perspective, intent, and the courtroom environment while pleading, tactfully modifying one's arguments accordingly, and placing one's perspective based on the law and facts.

(3) Continuous Advocacy

        i.          Ability to find proper solutions to problems.

       ii.          Quality to analyze matters legally.

      iii.          Based on legal research.

     iv.          Based on facts.

      v.          Ability to provide professional consultation.

     vi.          Good negotiator.

    vii.          Ability to find alternative options for dispute resolution.

 

3.2 Communication Skills for a Legal Practitioner

A legal practitioner's reputation does not develop through advertisements like messages broadcast via telecommunication channels or electronic means. It is the result created by a legal practitioner's deepest studies, knowledge-skills, experience, and self-confidence. Even if a legal practitioner is experienced in jurisprudential principles, possesses comprehensive legal knowledge, and has exemplary writing skills, a weak presentation can adversely affect their professional interests. Since success in the legal profession is the fruit of hard work, qualities such as patience, honesty, studiousness, the ability to understand subject matter, self-confidence, and explaining the subject matter clearly to the general public regarding any problem or question arising in any situation are essential. The ability to present effectively and distinctively demonstrates the capability of a legal practitioner.

Client Interview and Consultation

A legal practitioner must not assume that the client or litigant seeking an expert's assistance or service is illiterate, ignorant, or completely devoid of legal knowledge. Yes, such clients may sometimes be uneducated or unfamiliar with the law. However, in today's era, the application of social, economic, and political development is no longer limited. It has become mandatory for legal practitioners to study laws related to currency, banking, insurance, financial institutions, and securities, as well as laws concerning industry, commerce, supply, electronic commerce, foreign investment, technology transfer, and international financial transactions. They must provide oral or written advice based on the requirements.

General Presentation

When collaborating with clients, general presentation is the medium through which one thoughtfully listens to the client's perspective or explains one's own words properly. It is also understood as initial communication. This is the behavior extended to the client during the initial stage. It is also important because the nature of the case is determined based on this interaction. A legal practitioner must try to understand the client, gather necessary information related to the case keeping the client's mental state in mind, behave gently, and strive to relieve the client from mental stress. Therefore, in this stage, the skill to make others understand what you speak and to understand what others speak is extremely important. In fact, clearly understanding the words spoken by the clients and their underlying sentiment is a vital matter. The client must be allowed to express their perspective as much as possible, and a comfortable environment should be created for them to speak should be made. One must also effectively report important matters without omitting anything from what has been heard. A legal practitioner must not limit general presentation only to discussions with clients, but must also use it effectively during court pleadings. At various stages of resolving a case, one must listen to what the plaintiff and defendant say and give an appropriate response according to the situation. If the clients are unfamiliar with legal and judicial procedures, they may fail to focus on the core subject matter and waste unnecessary time; in such a situation, the practitioner must intervene in their narrative and steer them back to remain focused on the relevant topic.

Negotiation (वार्ता)

Negotiation refers to discussions held between two or more parties with the desire to find a solution regarding a disputed subject matter. In our daily lives, we continuously engage in various types of negotiations. It is through negotiation that decisions are made daily on various matters. Negotiations can be direct, indirect, formal, informal, etc. In other words, negotiation is a process through which parties or groups discuss a dispute existing between them and reach a mutually agreeable settlement on their own.

Through negotiation, case litigants save unnecessary expenses and time, making it much easier to resolve and settle the case. Therefore, just like in other developed countries, it is necessary to operate professional negotiation services in Nepal through individuals who specialize in this field. Negotiations can be familial, social, political, diplomatic, legal, etc. They can also be bilateral as well as multilateral. The primary objective of negotiation is to discuss the dispute or issue between the parties and arrive at a definitive agreement or conclusion Through negotiation, disputes and quarrels that occurred before [are resolved]. We negotiate when buying goods at a grocery shop, we negotiate when buying and selling a house and land, and we negotiate when renting out or taking a house or room on rent. On a daily basis, we can hear and see news about various types of negotiations taking place at national and international levels.

Oral Discussion (मौखिक छलफल)

A legal practitioner does not only appear in court to plead and advocate on behalf of their party, or merely provide consultation when someone comes to their office to seek legal advice. Since legal practitioners are the intellectual asset of the country, they must not only contribute to constitutional and legal development, but also represent the country at national and international levels. Keeping in view the principle of Vasudhaiva Kutumbakam (the world is one family), they must participate in scholarly seminars of experts and express their views on constitutional, legal, socio-economic, industrial, and political questions. Therefore, they must possess an abundant amount of knowledge regarding these matters, remain alert and conscious toward this, constantly strive to maintain their knowledge, skills, and intellectual excellence, and maintain continuity in its practice in one form or another.

 

Examination of Witnesses (साक्षी परीक्षण)

Questioning / Examination-in-Chief (सोधपुछ)

According to Section 50 of the Evidence Act, 2031 (1974), when examining a witness, the party to whom the witness belongs, or if that party has appointed a legal practitioner, that legal practitioner being present, can question the witness. The party to whom the witness belongs may, instead of questioning the witness themselves, submit a written application pursuant to sub-section (6) of the said Section requesting that the court conduct the examination. If such a written application is submitted, the court itself shall ask the necessary questions to the witness and record the answers. However, when the court thus questions any witness If the court conducts the questioning, the party to whom the witness belongs shall not be allowed to conduct the examination-in-chief or re-examination. A party is also not allowed to choose to question some of its witnesses themselves while submitting an application requesting the court to question others among its witnesses.

Main Objective of Examination-in-Chief

The primary objective of the provision regarding examination-in-chief is to prove through the witness that the claim or contention made by the party presenting the witness is true. Furthermore, such questioning remains limited only to the relevant facts of the disputed case. In this examination, the witness is also tested to gain complete information about their mental state. For example, it tests whether the witness possesses the capability to be a witness and whether they can understand the questions asked to them.

Matters to be Considered when Keeping and Questioning Witnesses

Since a witness suffering from prejudice or bias holds no legal value, it is best not to call them. Such a witness is an enemy hidden in the guise of a friend. It is appropriate not to present such a witness because you cannot impeach them, cross-examine them, or indirectly attack them. Additionally, presenting a witness who should ideally be presented by the opposing party deprives you of the opportunity to cross-examine them; therefore, you must not present such a witness yourself.

3.3 Trial-Related Skills (Purpaksha)

From the occurrence of an incident to the completion of the court process and punishing the criminal, or until justice is delivered to the aggrieved party, various types of stages must be completed. In addition, one must thoroughly study the procedures from the inception of the case to the time of judgment execution. Thus, the skill to expertly keep track of how the case is progressing at each stage and modify or coordinate one's advocacy accordingly is called advocacy skills related to trial proceedings (purpaksha). For a practitioner, the trial of every case conducting the work is a regular duty. It is through the trial (purpaksha) of a case that information about its actual status is obtained. Under this, on the basis of looking into how the case was initiated, what the main and relevant facts of the case are, etc., through observation, study, and research, the actual situation of the case and the involved persons/parties is ascertained, and all actions to move forward accordingly are included.

The trial-related skills of a legal practitioner can be listed as follows:

(A) Case-Oriented Legal Research (मुद्दामुखी कानुनी अनुसन्धान)

For individuals involved in the legal profession, studying the case file (misil) is a powerful medium to increase expertise in the micro-elements of a case or to enhance the skills of newly entering legal practitioners across various issues of a case. Based on this, everything related to the case becomes known, which later provides help in moving forward with the case.

Meticulous research conducted on various aspects, minor elements, evidence and related documents, time, date, figures-words, related laws, principles, precedents (najir), and values of every case is called case-oriented or case-centric legal research. An important aspect of a case trial is case-centric legal research. While conducting case-oriented legal research, the following things are done:

• Inception/initiation of the case
• Disputed facts of the case
• Core points of disagreement / issues to be decided (mukh namileka kuraharu)
• Undisputed matters
• Legal questions
• Basis of evidence
• Detailed study of pleading notes (bahasnote), judgments, and appeals

 (B) Case Preparation (मुद्दाको तयारी)

To make their profession strong and vibrant, a legal practitioner's advocacy skills play an important role. Every legal practitioner must do detailed preparation for a case in the context of the trial (purpaksha). The working efficiency and expertise inherent in a legal practitioner are reflected in the preparation of the case itself. Therefore, to secure justice for the client, the practitioner must fully prepare on the basis of their knowledge, skill, efficiency, and experience for pleading and advocacy in court, exercising hard work and patience. Every legal practitioner must be able to showcase their legal skills by preparing differently according to the nature of each case. The preparation of cases in civil and criminal law is distinct from one another.

Although preparation must be done by studying various aspects, when preparing a case overall, the following matters must be considered:

1. The subject matter and factual aspects of the case.
2. Collection of precedents (najir), laws, and reference books.
3. Whether there is a situation to raise the question of res judicata (prad-nyaya).
4. Whether the petitioner has the locus standi (hakdaiya) to file the petition, or whether court permission is required to register the petition.
5. The legal basis and concrete evidence capable of corroborating the claim made by the party, and whether such evidence exists or not.

 (C) The Pleading Body/Forum (बहस गर्ने संस्था)

Various arguments are raised in the course of pleading in court. From these arguments and statements of the plaintiff and defendant, various new matters emerge as a conclusion. Managing and recording those conclusions reached during pleading so they can be used in the present and future is an important skill of a legal practitioner. Legal practitioners must be proficient and skilled in the art of pleading. Since they are recognized as officers of the court, they also bear a responsibility toward the court. A legal practitioner must be committed to serving the rights and interests of their client while providing significant support to the judicial administration of the state. They must continuously play the role of a guardian to protect the rule of law while maintaining the high dignity of their profession and business. A legal practitioner is not merely a person who pleads on behalf of a party, but is also found to be an auxiliary pillar of the state's judicial administration.

Advocacy is a task performed within the boundaries of certain rules. A legal practitioner who performs good advocacy is one who fully complies with the professional code of conduct, possesses professional qualities, efficiency, and capability, and engages in continuous advocacy, which can be expressed as follows:

 

Unit - 4: Public Interest Professional Skills and Legal Aid

4.1 Public Interest Litigation (सार्वजनिक सरोकारको विवाद)

The origin of Public Interest Litigation is found to have started from Roman law. In Roman law, the term 'Actio popularis' reflects the meaning of an action taken for everyone. In Nepal, the concept of Public Interest Litigation is considered to have arrived via India. The public interest litigation is such a type of dispute that is publicly connected to the entire community. In other words, a dispute of public right or interest does not mean a dispute limited only to the right or concern of any specific individual or individuals. Instead, it refers to a dispute related to the collective right or interest of the general public of the State of Nepal or any specific community.

 

There is no fixed or definitive criterion to strictly define what kind of dispute constitutes a public interest litigation. However, based on general understanding, it refers to any dispute whose connection and interest are public. Courts in Nepal have also occasionally spoken on the subject of public interest litigation. For instance, deciding whether a dispute involves a public right or interest depends on whether that dispute relates to the collective right or interest of the general public or a specific community, or whether it relates only to the right or interest of a specific individual or individuals.

A subject matter related to the collective right or interest of the general public is termed public interest or concern. Public interest litigation is identified based on whether any dispute or issue is connected to the collective right or interest of the general public or a community, or whether it is connected to the right or interest of only one individual or specific individuals. The subject matters of public interest include the country's peace and security, general public education, health and morality, price hikes, matters of social justice managed as directive principles of the state in the Constitution, etc. While writing a writ petition involving matters of public interest, attention must be paid to the following things:

• (1) One must mention the basis confirming that the matter is of public interest, along with the subject matter of concern in the petition.
• (2) The subject matter must be based on facts; additionally, it must explicitly state which provision has been violated, by which body or individual.
• (3) The writing style and language must be pure, clear, and non-repetitive, written entirely within the boundaries of the Constitution and the law.

•  (4) All the bodies or authorities connected to the matter of public concern must be made opponents (respondents) in the case; however, one should not unnecessarily make too many parties opponents.
• (5) If there is an apprehension that the matter will take an acute or severe form if an interim order is not given immediately, one must demand an interim order (antarim aadesh) in the writ petition to stop it immediately and maintain the interest of the general public.

 

4.2 Legal Aid (कानूनी सहायता)

Legal aid refers to free or affordable services provided to individuals whose annual income is less than the amount prescribed by law, or who are unable to receive legal services and facilities due to various reasons. The process through which the state facilitates easy access to justice on behalf of the poor, helpless, illiterate, marginalized, and those lacking access to justice, thereby providing them with legal service facilities, is called legal aid. Legal aid works towards increasing court access and delivering proper justice to vulnerable individuals in society to ensure they receive impartial justice. Protecting the rights, freedoms, and interests of parties who are financially unable to reach the court, building legal awareness through counseling, ensuring easy access to justice, and maintaining complete compliance with accepted principles of law is considered the main objective of legal aid.

In the year 2015 B.S. (1958 A.D.), a full bench meeting of the Supreme Court of Nepal initiated the concept of legal aid by arranging for salaried lawyers (Baitanik Vakil) with the objective of providing free legal aid from the non-governmental sector to helpless parties who were unable to appoint a lawyer to plead and defend their case. According to this, free legal aid is provided in cases involving individuals who attend court dates in person and are over 60 years of age, minors under 16 years of age, the destitute, and the poor … policy provision was made. After that, in the year 2028 B.S. (1971 A.D.), the Legal Aid Regulations drafted by the Nepal Bar Association defined an "incapable party" and arranged for free pleading/advocacy on behalf of such parties, covered expenses including the copying of legal deeds, and even provided financial assistance in essential situations. While salaried lawyers (Baitanik Vakil) were kept in every Regional Court in 2052 B.S. (1995 A.D.) to provide free legal aid to incapable parties, following the promulgation of the new Constitution in 2072 B.S. (2015 A.D.), legal aid has been provided to incapable and helpless individuals through one salaried legal practitioner in every court of Nepal.

 

4.3 Legal Literacy (कानूनी साक्षरता)

Acquiring education or knowledge on law and law-related subject matters is legal literacy. Becoming literate in law or gaining knowledge of the law is not very easy. This is because laws are made across various subjects and fields. However, no matter how many subjects or fields a law is made for, there is a universal principle that "ignorance of law is no excuse" (kanunko anabhigyata khamya hudaina).

One cannot make a claim stating, "I did not have knowledge of the law, I did not understand or know the law, therefore this incident or crime happened. I must receive immunity from the criminal liability or punishment of the said crime." Therefore, not only legal practitioners but every individual must be literate in law. Legal literacy is important not just for holding a job or running a business, but for increasing a person's overall awareness and building a civilized individual. Merely possessing knowledge of the Civil Code, the Criminal Code, 2074, the Civil Act, or the Constitution does not mean one is fully literate in law.

 

4.4 Para-Legal Service

A para-legal professional refers to an individual who works under the supervision of a legal practitioner, has acquired legal knowledge, but is not a licensed legal representative, or lacks practical and experimental knowledge of the law yet wishes to embrace the legal field as their profession or business.

Such newly emerging legal professionals who have recently entered the profession and are not fully proficient in the business, or individuals who have only obtained an academic qualification degree and received a license to practice law, or individuals who perform general legal work, including deed writing or scribing, represent para-legal services. "Semi-proficient" (para-legal) implies individuals who possess theoretical and legal knowledge but lack practical and procedural knowledge.

 

4.5 Case Briefing/Note Writing, Law Journal Editing, Law Firm Management, and Accounting for Legal Practice

A. Case Briefing / Note Writing (Mudda ko Tippani Lekhan)

When writing a case brief, the summary of facts should be prepared with a deep knowledge of the subject matter that might impact the judicial field in the future. A case brief must include important aspects such as legal questions, contentions of the respondent, lower court judgments and their bases, legal questions for decision in Supreme Court judgments, ratio decidendi (basis of decision), established precedents (najir), impacts, and critical opinions.

1. Summarization of Facts (Tathya ko Samkshepikaran)

First of all, various facts of the case are summarized, which provides the reader with clear information regarding the subject matter of the case. The entire matter regarding the case must be mentioned in brief. However, summarization does not mean that important points or details should be omitted.

2. Legal Questions (Kanuni Prashnaharu)

After summarizing all aspects of the case, one must explicitly mention the legal complexities, issues, and questions that have arisen from it. Legal questions must be firmly based on statutory legal provisions. Only questions raised on the solid foundation of facts and evidence will receive a proper and definitive legal solution.

3. Contentions of Plaintiff and Defendant (Wadi-Prativadi ka Jikirharu)

Under this section, the claims, demands, assertions, and arguments of the disputing parties are factually detailed. It is highly recommended to present these contentions in a clear, bulleted format whenever possible.

B. Law Journal Editing (Kanuni Patrika Sampadan)

Just like standard newspapers and periodicals, various law-related articles, journals, souvenirs, and law reviews are regularly published in Nepal. The methodology of polishing, reviewing, and correcting the legal write-ups and essays published in these periodicals falls under Editing Law Journal.

The primary distinction between general news editing and legal news editing lies in the mandatory integration of a legal basis. When editing legal news and journals, careful consideration must be given to the following elements:

• Legal language and precise legal interpretation of the news item.
• Factual, accurate, and simple presentation of the story.
• Credibility and verification of the news source.
• Priority of space and placement given to the news item.
• Legal justification, relevance, and associated statutory provisions.
• Proper and accurate application of citation and quotation rules.

 

Law Firm Management and Accounting (Law Firm Vyavasthapan ra Lekha)

It is appropriate to organize and manage a legal practitioner's office differently than a standard commercial business office. When planning and setting up office management, it is wise to conclusively determine the following matters:

• Mission (Aafno Parilakshya)
• Vision (Purvadristi) and
• Objective (Uddeshya)

General Functions Performed in an Office:

• Planning (Yojana Banaune)
• Organizing (Sangathan Garne)
• Directing (Nirdeshan Dine)
• Controlling (Vyavasayik Niyantran)
• Maintaining Discipline (Anushasan Kayam Rakhne)

Components Included Within a Law Firm:

• Matters related to service benefits, facilities, and career development of one's peers and subordinate staff members.
• Strategic requirements necessary to operate the business efficiently.
• Registering case files (misil), preparation, summarization, making schedules, keeping the diary updated, continuous monitoring (including limitations and deadlines like myad and hadyamyad), file management, and returning files, etc.
• Since the core objective of the profession is public service along with financial gain, it is necessary to maintain records of income and expenses obtained from the work performed. According to the Income Tax Act, 2058, practitioners must obtain a Permanent Account Number (PAN), fill out estimated tax returns, and submit annual tax returns to pay income tax on taxable income. Firms registered as companies must prepare an audit report and get it approved by the Annual General Meeting (AGM). Regarding taking remuneration from clients and maintaining accounting records, the Legal Practitioners Code of Conduct must also be kept in mind.

 

4.6 Notary Public

A Notary Public is a position of public accountability, receiving authority from the relevant designated body. In our daily lives, for various purposes we need to submit our documents to various organizations and entities for various purposes. Submitting our original documents everywhere is often impossible as well as impractical. In many places, the submitted documents cannot be taken back because they need to be kept there as future evidence. However, nowadays, the tendency to commit illegal acts in various sectors is increasing. When documents submitted or handed over to various entities for different purposes are altered or not true to the original due to vested interests and reasons, many problems arise. To resolve this issue, the practice of appointing individuals with specific qualifications and skills to certify that copies are "true to the original"—and treating documents certified by such individuals as equivalent to the originals—has existed globally for a long time.

Qualifications Required to Become a Notary Public:

• A legal practitioner who has continuously practiced law for an uninterrupted period of seven years, or
• A person who has separated from service after holding at least a Gazetted Class II post in the Nepal Judicial Service.

Disqualifications for a Notary Public (According to Section 11 of the Act):

A person shall be disqualified from becoming a Notary Public if they meet any of the following criteria:

• Has not passed the examination prescribed under Section 11,
• Lacks the qualifications specified under Section 12,
• Has been found guilty and sentenced by a court for homicide, theft, dacoity (robbery), forgery, fraud, corruption, rape, trafficking or consumption of narcotics, wildlife poaching/trafficking, or any other grave offense of a similar nature,
• Lacks good moral character,
• Is a non-Nepali citizen,
• Has gone bankrupt / insolvent, and
• Is of unsound mind (lacks mental balance).

Cancellation of Notary Public Certificate

The certificate of a Notary Public shall be cancelled under the following conditions:

• If they are found guilty and sentenced by a court for an offense mentioned in clauses (c) and (d) of Section 13,
• If they are of unsound mind (lose mental balance),
• In the event of their death,
• If they fail to renew their certificate,
• If their legal practitioner certificate is cancelled or their name is removed from the register of legal practitioners, or
• If they voluntarily submit an application to the Council for the cancellation of their certificate.

Functions a Notary Public May Perform

Subject to the Act, a Notary Public is permitted to perform the following works:

• Certify any deed or document,
• Translate a document written in one language into another language, and
• Certify a copy of any original document as a true copy.

Prohibited Functions (According to Section 20)

A Notary Public must not perform the following acts:

• Certify a deed or document that is not registered in the logbook/register of their office,
• Certify any document itself as being the original document,
• Certify a deed or document executed or prepared by themselves,
• Certify a deed or document related to their own personal interest or business transactions,
• Certify a deed or document belonging to their close relative,
• Except as required by law, disclose any information or facts known to them during the certification process without obtaining the explicit consent of the person getting the document certified.

 

Unit - 5 Prescribed Precedents (Tokiyeka Najirharu)

 

5.1 Lilamani Paudel v. HMG Council of Ministers Secretariat and others

(Advocate Lilamani Paudel v. HMG Council of Ministers Secretariat and others, NKP 2060, Nos. 5/6, Page 354)

• A competent justice system should not benefit only wealthy and legally aware classes while leaving poor, helpless, and downtrodden citizens outside the administrative reaches of state justice.
• It is the duty of the state to provide access to the justice system for everyone.
• The state must eliminate situations where citizens lack legal defense or representation to ensure impartial justice.
• Therefore, this matter cannot be dismissed as something that is not a subject of public right or public concern.

• Any citizen of Nepal can petition this Court to declare a law unconstitutional and void if they believe it places unreasonable restrictions on constitutionally granted fundamental rights.
• A citizen can file this petition even if the restrictive law does not cause them direct personal harm.
• Seeking to declare such a law invalid because it curtails fundamental rights constitutes a matter of public interest. (Q. No. 13)

• The Legal Aid Act was enacted specifically to provide legal assistance to incapable parties.
• Therefore, it is necessary to distinguish who is capable and who is incapable among applicants.
• Providing legal aid to everyone without making this distinction fails to fulfill the objectives of the Legal Aid Act, 2054.
• It is the responsibility of the designated authority to distinguish between capable and incapable individuals. Since a provision has been made for a District Legal Aid Committee and authority has been granted to the said Committee to make decisions based on the criteria for capable and incapable individuals, such a statutory provision in Section 3(2) of the Legal Aid Act, 2054 does not appear to be inconsistent with Article 11(1) of the Constitution.

• Rules must be formulated within the limits of delegated authority to fulfill the core objectives of an Act.
• However, contrary to the objectives of the Act, Sub-rule (2) of Rule 6 of the Legal Aid Regulations, 2055 was found to affect the fundamental rights guaranteed by Article 11(1) of the Constitution.
• By granting excessive, un-delegated authority to the District Legal Aid Committee, it violated the core legal principle of delegatus non potest delegare (a delegate cannot delegate further).
• Therefore, even though it does not directly conflict with Article 11(1) of the Constitution as asserted by the petitioner, Rule 6 Sub-rule (2) oversteps the powers delegated by the parent Legal Aid Act, 2054 and acts against its spirit.
• Consequently, pursuant to Article 88(1) of the Constitution, Sub-rule (2) of Rule 6 of the Legal Aid Regulations, 2055 is declared null, void, and unconstitutional. (Prakaran. No. 16 & 17)

 

5.2 Advocate Narayan Prasad Koirala v. Syangja District Court and Others

(Advocate Narayan Prasad Koirala v. Syangja District Court and Others, Nos. 5/6, page 239)

The right to appear before the Bench in the capacity of a legal practitioner and plead/advocate on behalf of a client.

• It does not appear that there is a legal provision granting an agent (abhikarta) the right to perform such functions.
• Pursuant to the Evidence Act, 2031, functions such as recording witness depositions, examination-in-chief, and cross-examination take place before the Bench. Therefore, it cannot be argued that an agent has the right to cross-examine by representing a party as a legal practitioner.
• In this situation, practicing as a legal practitioner also encompasses pleading in court. Thus, it cannot be said that one is permitted to submit a power of attorney (vakalatnama) and conduct cross-examination in matters concerning cross-examination.
• The current Legal Practitioners Council Act, 2050, and the schedules of the aforementioned Code of Conduct also appear to restrict the activities previously performed by agents under the then-existing legal frameworks.
• Under these circumstances, it cannot be argued that an unreasonable restriction has been placed on the fundamental rights guaranteed by the Constitution.
• Therefore, it cannot be claimed that the order of the Syangja District Court—which invalidated the actions of the petitioner acting as an agent to conduct examinations, cross-examinations, and record depositions in the cases mentioned in the petition—or the order of the Appellate Court Pokhara confirming that decision, unlawfully harmed the petitioner. (Prakaran. No. 9)

 

5.3 Badri Bahadur Karki v. Commission for the Investigation of Abuse of Authority (CIAA) Kathmandu and Others

(Badri Bahadur Karki v. CIAA (Five-Judge Full Bench) NKP 2058, Nos. 5/6, page 239. [2069/2073/2074])

The provision for the Commission for the Investigation of Abuse of Authority (hereinafter referred to as the Commission) is found in Part 12, Articles 97 and 98 of the Constitution of the Kingdom of Nepal. This Commission can, in accordance with the law, conduct investigations and inquiries itself, or cause them to be conducted by others, regarding the abuse of authority committed by any person holding a public office through improper actions or corruption. However, in the Constitution of the Kingdom of Nepal, officials facing such proceedings and the Military Act.It does not appear that the Commission has the jurisdiction to initiate proceedings against officials who are subject to action under the Military Act. (Prakaran No. 19)

• The primary function of this Commission is to conduct investigations and inquiries, in accordance with the law, regarding the abuse of authority committed by any person holding a public office through improper acts or corruption.
• A "person holding public office" refers to any individual who occupies a position where they are entitled to exercise authority or are required to fulfill a liability or duty pursuant to the Constitution, other prevailing laws, or the decisions or orders of a relevant body. (Prakaran. No. 21)
• If the prevailing law provides any alternative remedy regarding an improper act committed by a person holding public office, the Commission cannot entertain a complaint or initiate proceedings without that remedy being exhausted.
• However, the mechanism to obtain a constitutional remedy under the extraordinary jurisdiction of the Supreme Court cannot be categorized as an "alternative remedy" for this purpose.
• If an officer has exercised their discretionary power without any evidence of malice (badniyat) or arbitrariness, the Commission cannot initiate proceedings under this Act.
• Nonetheless, since no one should receive immunity from criminal acts, if the actions performed constitute a corrupt act, it cannot be argued that the Commission for the Investigation of Abuse of Authority is barred from conducting investigations and inquiries into actions performed by the Attorney General. (Prakaran. No. 22)
• Regarding the return of seized goods, the decision of the Attorney General has become final; therefore, the Commission cannot arrest and prosecute. On this ground, the petitioner Sunil Maskey filed a petition in this Court requesting an order of Habeas Corpus (Bandi Pratyaks hikers), stating that during the investigation process by the Commission.
• Stating that the petitioner was kept in custody, the petition was dismissed by this Court on the date 2057/9/25 (January 9, 2001), and that decision remains final.
• Based on the ruling of that Habeas Corpus writ petition, it cannot be argued that the Commission is barred from exercising its constitutional authority.
• The Commission retains the power to conduct investigations and inquiries to see if a criminal act contrary to the prevailing Constitution and legal system has occurred.
• No individual can receive complete immunity from criminal actions.
• The position of the Attorney General does not fall within the list of offices excluded from the Commission's jurisdiction.
• The Constitution does not explicitly place the Attorney General outside the jurisdiction of abuse of authority investigations.
• Therefore, it cannot be argued that the Commission for the Investigation of Abuse of Authority (CIAA) is barred from conducting inquiries against the Attorney General.
• The Commission can lawfully investigate allegations of improper acts or corrupt activities associated with actions performed by the Attorney General.
• There is no basis to state that the Commission lacks the jurisdiction to handle corruption or misconduct investigations involving the Attorney General.
• Records show that an investigation officer was formally designated by the Commission's decision dated 057/9/3.
• Constitutional provisions allow the Commission to delegate functions, duties, and powers regarding corruption to the Chief Commissioner, Commissioners, or any government employee under specified conditions.
• Pursuant to this power, Krishna Prasad Sharma, the Acting Officer of the Special Police Department, was designated as the official investigation officer.
• Since the designated Acting Investigation Officer requested a clarification from the Attorney General, it cannot be argued that the clarification was demanded by a person lacking jurisdiction. (Prakaran. No. 23 & 24)
• The Attorney General holds various inherent functional rights.
• These include providing legal opinions and advice, representing the Government, appearing before any court or official, and attending Parliament.
• While exercising these powers, the Attorney General enjoys all the rights, privileges, and immunities granted to a professional person or body.
• No individual holds the right to legally challenge or question decisions made by the Attorney General in good faith using their lawful discretion.
• Absolute professional immunity is explicitly granted to the Attorney General regarding these professional actions. (Prakaran. No. 26)
• The letter dated 2057/11/4 officially listed its subject as a "clarification."
• However, it failed to specify a concrete accusation or list the specific laws broken based on any investigation.
• Therefore, the letter does not fall under the strict arrest/prosecution terms of Section 15 of the CIAA Act, 2048.
• It remains classified merely as a general inquiry letter.
• The CIAA sent this inquiry regarding the Attorney General's decision not to file a lawsuit in the case mentioned in the petition.
• The Commission even requested the case file (misil) to facilitate a clear explanation.
• Consequently, the court cannot agree with the argument that the Attorney General is completely exempt from responding to this inquiry.
• The Constitution establishes the Commission for the Investigation of Abuse of Authority as an independent body.
• It grants the Commission the power to independently file and prosecute corruption cases.
• This constitutional autonomy allows the CIAA to strengthen its independent status.
• The Commission itself holds the authority to decide whether to represent its cases directly or hire external legal firms.
• Therefore, because the matter involves a state-prosecuted case, it cannot be claimed that the CIAA is barred from investigating corruption.
• The Commission can investigate improper acts linked to the Attorney General's power to advise and represent the state. (Prakaran. No. 28 & 29)

 

5.4 Kalpana Sharma v. Tilak Prasad Adhikari and Others

(Kalpana Sharma v. Tilak Prasad Adhikari and Others...)

 (v. Tilak Prasad Adhikari and others) NKP 2059, Nos. 3/4, pg 178

Since there is some difference in nature between a transaction deed (len-den ko likhat) and a contract deed (karar ko likhat), transactions and contracts must accordingly be viewed within separate legal perspectives.

• In a contract deed, the mutual rights and liabilities of the parties to the deed are explicitly determined by disclosing terms and restrictions within the contents of the deed; therefore, the intention of the parties to a contract aligns with those very terms and restrictions.
• Stepping outside the intention of the contracting parties expressed in the deed and instead applying a separate law concerning transaction matters through an external assumption or court interpretation would run entirely contrary to the fundamental concept of contract law.
• It is the duty of the court to give effect to the intention of the parties to a contract, and the court cannot impose its own external reasoning outside the clear intention expressed in the deed. (Prakaran. No. 9)

 

5.5 Madhusudan Bhattarai v. Narendra Bahadur Chand and Others

(Madhusudan Bhattarai v. Narendra Bahadur Chand and others) NKP 2059, Nos. 3/4, pg 210

It would be completely contrary to the law and justice to interpret that only the functions and duties of the Attorney General are delegated to a District Government Attorney, but they do not enjoy the same protections and functional independence as the Attorney General regarding liabilities arising from performing those functions and duties.

Merely based on the fact that a government attorney conducted pleading and defense in accordance with their duty, no action shall be initiated against them, nor shall a defamation lawsuit be filed. This protection under the Government Attorneys Regulations. Based on the provisions in Rule 35 of the Government Attorneys Regulations, 2055, there is no dispute that the functions, duties, and powers conferred by the Government Cases Act, 2049—including prosecution and defense by a government attorney—are purely of a professional nature. It would be neither just nor lawful to interpret or state that a government attorney does not enjoy professional immunity for such actions performed in good faith within the boundaries of professional conduct.

Merely because the Commission has the jurisdiction under Article 98 of the Constitution to investigate offenses involving corruption and abuse of authority, it cannot be considered that the said Commission has the authority to scrutinize, as if reviewing an appeal or a review petition, any decision or action related to prosecution, defense, or legal consultation carried out by government attorneys, including the Attorney General, within their jurisdiction under sub-articles (2) and (5) of Article 110 of the Constitution to determine whether it is legal or illegal, right or wrong, and based on that, to find them guilty of committing an improper act or corruption amounting to abuse of authority.

Without revoking or retaining the delegated authority, the present case cannot be considered to have been filed in accordance with the law, where the Commission itself assigned an officer to conduct the investigation and inquiry into a corruption case falling within the schedule of the Government Cases Act, 2049, and the case was filed by that very officer on behalf of the Commission.

Regarding the decision made by a District Government Attorney in their official capacity, in accordance with the functions, duties, and powers related to prosecution and defense delegated by the Attorney General pursuant to Article 110(2) and (5) of the Constitution and under the right to professional immunity pursuant to Sections 17(2) and 18 of the Government Cases Act, 2049, as if subject to judicial review by a court, on whether such a state-prosecuted case should be initiated or not, and which... It is not permissible to interfere or intervene by entering into the subject matter of the Attorney General's right to make a final decision under Article 110(2) of the Constitution regarding which specific section of an Act must be applied to a case. (Prakaran. No. 29 to 34)

 

5.6 Ravilal Chaudhary Tharu v. Nepal Legal Practitioners Council, Kathmandu and Others

(Ravilal Chaudhary Tharu v. Nepal Legal Practitioners Council and others, NKP 2053, No. 10, pg 711)

• Section 17 of the Legal Practitioners Council Act, 2050 outlines the necessary qualifications required to become a legal practitioner.
• Section 25, Sub-section (1) of the said Act prohibits unauthorized individuals from practicing law.
• Sub-section (4) of the same section prescribes legal provisions for fines and imprisonment if an unauthorized person practices law.
• Similarly, Rule 6 of the Deed Writers (Scribes) Regulations, 2051 specifies the mandatory terms and conditions that a deed writer must follow.
• The statutory provisions under the Legal Practitioners Act, 2050 and the Deed Writers Regulations, 2051 create a framework to classify legal practitioners based on qualification to ensure professionalism.
• This regulatory system does not create any bar or obstruction preventing a petitioner from acquiring the necessary qualifications to become a licensed legal practitioner.
• A fundamental legal principle states that equal laws must apply to individuals in similar or equal circumstances.
• Therefore, it cannot be argued that the provisions of the Legal Practitioners Act, 2050 create an unconstitutional distinction or unequal treatment (asaman vyavahar) violating Article 11 of the Constitution between individuals who have successfully acquired the required legal qualifications and those who have failed to do so. (Prakaran. No. 11)
• The petitioner's claim that Sections 17, 25(1), and 25(4) of the Legal Practitioners Council Act, 2050, and Rule 6 of the Deed Writers Regulations, 2051 conflict with Articles 11(1), 11, and 12(1), (2)(a), and (e) of the Constitution of the Kingdom of Nepal, 2047 cannot be declared invalid based merely on a bare assertion of inconsistency.
• The writ petition fails to disclose any clear basis or reasoning to prove how these specific sections and rules conflict with the Constitution. Instead, the petition merely argues that the rights previously granted by the repealed Legal Practitioners Act, 2015 have not been provided by the newly enacted Legal Practitioners Council Act, 2050 and the Deed Writers Regulations, 2051.
• Since it cannot be argued that the legislature is barred from amending old laws and implementing a new legal framework, the present writ petition is dismissed. (Prakaran. No. 13)

 

5.7 Ravindra Bhattarai v. HMG Council of Ministers Secretariat and Others

(Ravindra Bhattarai vs. HMG Council of Ministers and others) NKP 2055, Nos. 11, pg 615

• A core tenet of criminal jurisprudence states that a person is presumed innocent until proven guilty. In this light, it is unjust to treat an individual as a criminal immediately upon an accusation or charge being leveled against them.
• The right to a legal defense and the right to legal representation are fundamental principles of natural justice.
• Modern jurisprudence firmly establishes that every citizen has a right to legal aid. Under this framework, governments ensure representation for those who are financially unable to represent themselves.
• In this context, if a complaint is filed against an employee and the relevant department head determines that the merits of the case justify providing legal representation for that employee If an official request is made accordingly, how can the act of a government attorney representing a government employee be called unconstitutional?
• Furthermore, there should not be a mindset that simply because representation is provided, the individual will automatically be acquitted or cleared of charges.
• A judge can deliver sound justice in any dispute only after carefully listening to the perspectives of both sides.
• Rather than delivering justice by hearing only one party, listening to both sides makes it significantly easier for the adjudicator to reach the core depth of the matter. Since this is an established fact, the argument that there should be no legal representation provided by the government side cannot be accepted. (Prakaran. No. 13)

 

5.8 Subarna Prajapati v. Kavrepalanchok District Court and Others

(Subarna Prajapati v. Kavrepalanchok Disctrict Court and others) NKP 2054, Nos. 9 pg 946

(1) If a certificate-holding practitioner who has undertaken the responsibility to perform legal deed writing (scribing) prepares a document by bringing forward a false or imposter person (jhutta manis), such acts and proceedings cannot be considered conduct compliant with Rule 27 of the Legal Practitioners Rules, 2025. (Prakaran No. 9)

 

5.9 Tulmaya Chakradhar (on behalf of Mukunda Sharan Shrestha) v. Supreme Court Bar Association President Shambhu Thapa and Others

(Tuel Manya Chakradhar Vs. Supreme Court Bar Association President Shambhu Thapa and others) NKP 2053, Nos. 7 pg 611

• If a complaint is received from anyone against a legal practitioner, a Disciplinary Committee (Anushasan Samiti) shall be formed to investigate the matter and take necessary action. If the said committee finds the legal practitioner guilty, Section 11(2) of the Legal Practitioners Council Act, 2050 provides that the Disciplinary Committee holds powers equivalent to a court regarding issuing summonses and examining witness evidence in the course of proceedings.
• Since the situation to issue such a summons arises only while taking disciplinary action against a legal practitioner found prima facie guilty, it is unnecessary to issue a summons when no such disciplinary action has been initiated. (Q. No. 5)
• The petitioner's complaint was shelved (tameli) during the preliminary investigation phase on the grounds of being entirely baseless.
• The petitioner has failed to explicitly state in their application how and which of their constitutional rights were violated by this action.
• Therefore, it cannot be considered that any fundamental right of the petitioner was violated by the actions carried out in accordance with the law by a competent authority. (Q. No. 5)
• The preamble of the Nepal Legal Practitioners Council Act, 2050 clearly indicates that the Act was enacted to manage the rights and interests of legal practitioners.
• This confirms that the Act relates strictly to the professional domain of legal practitioners.
• Section 11(5) of the Act provides a mechanism for a legal practitioner to file an appeal only if disciplinary action is taken against them.
• Since the petitioner is not a legal practitioner, the provisions of Section 11(5) cannot be said to conflict with Article 11(1) of the Constitution.
• Therefore, the decision dated 2051/2/28 (June 11, 1994) of the Disciplinary Committee to archive the complaint cannot be deemed to have caused any injury to the petitioner's fundamental or legal rights.
• Consequently, there is no need to enter into the further merits of this writ petition or call for a written response from the respondents.