Professional Ethics and Misconduct

TUTORIAL II

Cases on Professional Misconduct

SUBMITTED BY:

KARTIKEY SWAMI (16010324331)

DIV: D

ON:11th OF MARCH, 2021

SYMBIOSIS LAW SCHOOL

HYDERABAD

SUBMITTED TO:

DR. GANESH KUMAR

 1. N.G Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028
Brief facts:
A witness, who is an agriculturist scientist claimed to have worked as an Advisor in the UNO
until he retired therefrom. He filed a complaint before the Judicial Magistrate of First Class,
Pune, Maharashtra against some accused for the offence of theft of electricity. The accused in
the said complaint case engaged Advocate Shri Shivde, the first respondent and his colleague
Shri Kulkarni, the second respondent who were practising in the courts at Pune. The two
respondent-advocates filed a joint Vakalatnama before the trial court and the trial began in
1993. Appellant was examined in-chief. Thus far there was no problem. However, the witness
was put to constant harassment when the Magistrate posted the case for cross-examination of
the appellant on 30.7.1993.

As per the version of the appellant, he had to come down from New York for being cross-
examined on that day, but the second respondent advocate sought for an adjournment on the
ground that it was not possible to conduct the cross-examination unless all the other witnesses
for the prosecution were also present in court. They continued to seek adjournments on all the
dates further. On all the dates of court hearings, the appellant and the witnesses were present in
the court but both the advocates sought for adjournment on trivial reasons. The Judicial
Magistrate conceded their requests without paying heed to the difficulties faced by the
witnesses. This practice went on for about 5 months and the appellant after getting vexed by
the irresponsible action of the respondents, filed a complaint before the State Bar Council of
Maharashtra.

The Respondents filed a joint reply to the complaint filed by the appellants reiterating that the
Respondent No. 1 was suffering from severe throat infection and was under medical treatment
for the same. However, the contention of the appellant is that he saw the Respondent no. 1
proactively defending and arguing the case in another court without any difficulty in speaking.

Issues:

1. Whether the acts attributed to the respondents amounted to professional

misconduct?

What amounts to professional misconduct?

In this particular case, the Respondent advocates always sought for adjournments on different
frivolous reasons which bought great discomfort and harassment to the appellant and all the
witnesses present before the court for cross-examination of witnesses. The advocates gave
reasons such as requirement of all witnesses at one time during cross-examination, throat pain
of the first respondent, death of father of respondent no 1’s friend, etc.

State Decisis:

i. Is the court silent on any issue?

The court has taken into consideration the behaviour of the Judicial Magistrate who yielded to
all the procrastinated tactics, should be made answerable to the High Court so that action could
be taken against the Magistrate on the administrative side for such serious laches. However, he
had only started working as a regular magistrate just after completing the training we persuade
ourselves to refrain from recommending any disciplinary action against the
Magistrate. Therefore, apart from considering the misconduct of the advocate in the matter, the
court also addressed the responsibility of the Judicial Magistrate to ensure the judicial process
is fair to both the parties.

ii. What is the principle laid by the court?

Through this case the Supreme Court has made it clear that seeking repeated adjournments for
postponing examination of witnesses present in the Court amounts to misconduct and an
advocate may be punished for professional misconduct.

iii. Obiter dicta

When witnesses are present in Court for examination the advocate concerned has a duty to see
that their examination is conducted. We remind that witnesses who come to the Court, on being
called by the Court, do so as they have no other option, and such witnesses are also responsible
citizens who have other work to attend for eking out livelihood. They cannot be treated as less
respectables to be told to come again and again just to suit the convenience of the advocate
concerned. If the advocate has any unavoidable inconvenience it is his duty to make other
arrangements for examining the witnesses who is present in Court. Seeking adjournments for
postponing the examination of witnesses who are present in Court even without making other
arrangements for examining such witnesses is a dereliction of advocates duty to the Court as
that would cause much harassment and hardship to the witnesses. Such dereliction if repeated
would amount to misconduct of the advocate concerned. Legal profession must be purified
from such abuses of the Court procedures.

The collocation of the words guilty of professional or other misconduct has been used for the
purpose of conferring power on the Disciplinary Committee of the State Bar Council. It is for
equipping the Bar Council with the binocular as well as whip to be on the qui vive for tracing
out delinquent advocates who transgress the norms or standards expected of them in the
discharge of their professional duties. The central function of the legal profession is to help
promotion of administration of justice. Any misdemeanor or misdeed or misbehaviour can
become an act of delinquency, if it infringes such norms or standards and it can be regarded as
misconduct.

iv. Ratio decidendi:

We make it abundantly clear that if a witness is present in court he must be examined on that
day. The court must know that most of the witnesses could attend the court only at heavy cost
to them, after keeping aside their own avocation. Certainly, they incur suffering and loss of
income. The meagre amount of Bhatta (allowance) which a witness may be paid by the court is
generally a poor solace for the financial loss incurred by him.

the State Bar Council has abdicated its duties when it was found that there was no prima facie
case for the Disciplinary Committee to take up. The Bar Council of India also went woefully
wrong in holding that there was no case for revision at all. In our considered view the appellant
complainant has made out a very strong prima facie case for the Disciplinary Committee of the
State Bar Council to proceed with.

v. Is it a decision per incuriam?

The court noticed that apart from the question of professional misconduct of the respondents,
that the Judicial Magistrate, who yielded to all the procrastinative tactics, should be made
answerable to the High Court so that action could be taken against the Magistrate on the
administrative side for such serious laches. Judicial Magistrate showed cause that she had only
started working as a regular magistrate just after completing the training on 6.7.1993. The
reason was considered reasonable enough to not take any disciplinary action against the
judicial magistrate. Therefore, the Supreme Court did not miss out on anything point of law
while pronouncing this judgement.
Decision of Supreme Court:
The Supreme Court has made it clear that seeking repeated adjournments for postponing
examination of witnesses present in the Court amounts to misconduct and an advocate may be
punished. Court also analysed Section 35 of the Act and held that the requirement of “reason to
believe” cannot be converted into a formalised procedural road block, it being essentially a
barrier against frivolous enquiries. Violation of Rule 11 of the BCI Rules- Chapter II.

Supreme Court therefore set aside the order of State Bar Council as well as that of the Bar
Council of India and held that the complaint of the appellant would stand referred to the
Disciplinary Committee of the State Bar Council.

2. D.S Dalal v. State Bank of India, AIR 1993 SC 1608

Brief facts:

The State Bank of India lodged a complaint before the Bar Council of Delhi against the
appellant-Advocate, alleging that the appellant and two other Advocates of the M/s. Singh and
Company, were guilty of serious professional misconduct, as they failed to discharge their
professional duties and responsibilities entrusted to them.

The Bank alleged that it engaged the firm M/s. Singh and Company to file a recovery suit for
recovery of Rs. 6,12,164 from M/s. Delhi Flooring (P) ltd. and handed over the case-file
containing original and valuable documents. The firm submitted a bill for filing the recovery
suit which included the professional fees and other miscellaneous charges. One day 15.11.1975
the Bank paid a sum of Rs.11,475 which included 1/3rd of the professional fee and the
miscellaneous charges. However, the firm did not acknowledge if the suit was filed or not.

The Bank engaged another advocate Mr. Arora to check with the status of the case. The
advocate appointed by the Bank made necessary enquiries and searches and found that the suit
filed on 15.12.1975 in the High Court was returned to Mr. Singh, the advocate of the firm on
31.01.1976. He further informed that the entire suit paper book was returned to the firm for
making necessary corrections and refile it.

The Respondent bank claimed therefore that the appellants and his associates misappropriated
the money paid to them for court fee, miscellaneous expenses and 1/3 rd of the professional fee.
The Disciplinary Committee of Bar Council of Delhi transferred the case of Bar Council of
India as the case was pending for more than a year.
The Disciplinary Committee of the Bar Council of India held that the case against the appellant
and his associate was prove beyond reasonable doubt. Their names were removed from the
rolls of Advocates of the Bar Council of Delhi and the Sanads granted to them were ordered to
be withdrawn. The appellant filed the appeal before this Court, while his associate, filed
a review petition before the Bar Council of India, which was still pending. The Bar Council of
India granted stay in the review petition. The appellant contended that the suit was filed by
appellant on 15.12.1975 but the records of suit file was misplaced by the Registry of the High
Court, that by his letter dated 20-08-1977, he informed the bank about the suit filed being not
traceable and that the record of the suit was to be structured and refiled. The Supreme Court
dealt with the following issue which hearing this appeal.
Issues:
1. Whether the appellant and his associates were guilty of serious professional misconduct
for failing to discharge their responsibilities entrusted by the bank as a client?

Professional misconduct in this case:

The respondents misappropriated the amount from the appellant Bank realised by them for the
purpose of filing a recovery suit without filing the suit in a proper manner. When the file was
returned by the Court for making proper corrections and refiling, the Respondent advocates did
not take any action further and kept their client in darkness. The duties of an Advocate are
prescribed under Part VI of the BCI Rules and one of the foremost duty is to conduct the
functions and plead or act in a dignifies manner, to respect & maintain dignity of the court and
uphold client’s interests. The provisions of Section 35 of the Advocates Act deal with
professional misconduct of lawyers and advocates in India. When a person is found guilty of
professional misconduct; it shall refer the case to a disciplinary committee, issue a show cause
notice to the Advocate and the Advocate General of the State.

Stare Decisis:
i. Is court silent on any issue?
--

ii. What is the principle laid by the court?

The Supreme Court of India reiterated that misappropriation of money/fees paid to the
advocate while not performing the obligations towards the client amounts to professional
misconduct.
iii. Obiter dicta
This decision did not have an obiter dicta. The judge while pronouncing the judgment gave the
reasoning for the principle laid down and thereby upheld the decision of the Bar council of
India in the matter.
iv. Ratio decidendi
The court came to a conclusion by considering the evidence on record against the appellant.
Apart from the unproven statement of the appellant and Mr. B. Singh in the letter, there is no
evidence on the record to show that the suit file was misplaced or lost by the High Court
Registry. On the other hand, there is cogent and reliable evidence on the record to shows that
the Delhi High Court Registry returned back the papers to, Mr. B. Singh for removing the
objections raised by it.

v. Is it a decision per incuriam?

This judgement is not a decision per incuriam as Hon’ble Justice Kuldip Singh while writing
the decision of the Hon’ble Supreme Court has taken into account the reasoning and evidence
considered by the Bar Council of India and considered it as a right decision.

Decision of the Court:

The Supreme Court held that there is no ground to interfere with the order of the Bar Council
of India. While upholding the decision of Bar Council of India it referred that both the reports
of Mr. Arora, advocate on the acts of appellant has been proved on the record of the Bar
Council of India as evidence. The Bar Council of India on appreciation of the evidence before
it came to the conclusion that the charge against the appellant and Mr. B. Singh was proved
beyond doubt.
 3. V.P. Kumaravelu vs. The Bar Council of India, New Delhi and Ors.
(1997) 4 SCC 266

FACTS

An Appeal was preferred by the Appellant with respect to a common order passed by the
Disciplinary Committee of the Bar Council of India in 1986 in relation to two cases against
him, where the Disciplinary Committee of the Bar Council of Tamil Nadu could not dispose of
these cases within the prescribed period of one year. As a result, the two cases were transferred
to the Disciplinary Committee of the Bar Council of India under the provisions of Section
36B(1) of the Advocates Act, 1961. In 1978, the appellant was appointed in all the Civil Courts
constituted in Madras as the City Government Pleader on behalf of the Government. The
appellant was allowed the assistance of juniors who were not appointed by the Government.
The first complaint was filed by the Commission and Secretary, Government of Tamil Nadu
against the appellant before the Disciplinary Committee of the Bar Council of Tamil Nadu. The
complainant alleged that gross negligence on the part of the appellant, the Government of
Tamil Nadu had suffered substantial loss in a suit filed by the Travancore Textiles Pvt. Ltd.
against the State of Tamil Nadu, where the appellant was appointed as Government Pleader. In
the case, the Memo of Appearance had been filed by the earlier Government Pleader to whose
office the records of the case had been sent and was asked to prepare a written statement.
However, a fresh Memo of Appearance on behalf of the Appellant had not been filed in the
said suit nor were the papers put up before him. As a result, the suit was decreed ex parte
against the State. The appellant moved an application to set aside the ex parte order, which the
court allowed on condition that the Government should pay Rs. 20/- as costs. However, the
cost was not deposited and the application to set aside the ex parte order was dismissed.
Consequently, the suit was decreed ex parte. The next complaint was in respect of a suit filed
by an employee of the Directorate of Education of the State of Tamil Nadu challenging his date
of birth. However, no memorandum for appearance was filed in that suit on behalf of the State
of Tamil Nadu and an ex parte decree came to be passed in that suit. The appellant contended
that since the office staff had not put up the papers of this case before him, it was through
inadvertence that the suit was decreed ex parte. The Bar Council of India rejected this
contention, noting that at the time when an application for setting aside the ex parte order was
filed the appellant must have known about the pendency of the case, and the serious
consequences of non-compliance with the order for payment of costs. The Bar Council of India
noted mitigating circumstances which go to show that blame cannot be attached solely to the
appellant. Since, at no point of time the papers pertaining to the case were placed before the
appellant except for moving an application for setting aside the ex parte order. It was not clear
whether the appellant had personally appeared in court for setting aside the ex parte order or
was personally aware of or was appraised of the order of costs which had been passed while
setting aside the ex parte order. Additionally, all the papers regarding the case were received by
his predecessor at the time when the appellant was not Government Pleader. It was the duty of
the then assistant to submit the records of the case to the City Government Pleader for
preparation of the written statement but no one attended the office of the Government Pleader
with the concerned file for preparing the written statement. The Bar Council accepted that there
was no deliberate lapse on the part of the appellant and the office staff of the appellant was also
responsible for misleading the appellant and keeping him in the dark. The Government also did
not care to depute a responsible officer to attend the office of the Government Pleader. His only
lapse was not to have kept the office in order. Therefore, they imposed a "lighter" punishment
of severe reprimand due to the appellant’s good reputation in the Bar and was held guilty of
"constructive negligence".

ISSUES

The issue identified by the Supreme Court in the present Civil Appeal was:

i. Whether the negligence or "constructive negligence" if the Appellant amount to

professional misconduct?

RULES

Advocate Act, 1961

Section 36B(1) : regarding procedure for disposal of disciplinary proceedings, “The
disciplinary committee of a State Bar Council shall dispose of the complaint received by it
under section 35 expeditiously and in each case the proceedings shall be concluded within a
period of one year from the date of the receipt of the complaint or the date of initiation of the
proceedings at the instance of the State bar Council, as the case may be, failing which such
proceedings shall stand transferred to the Bar Council of India which may dispose of the same
as if it were a proceeding withdrawn for inquiry under sub-section (2) of section 36.”
Section 38 : regarding the provision for Appeal to the Supreme Court, “Any person aggrieved
by an order made by the disciplinary committee of the Bar Council of India under section 36 or
section 37 may within sixty days of the date on which the order is communicated to him, prefer
an appeal to the Supreme Court and the Supreme Court may pass such order [(including an
order varying the punishment awarded by the disciplinary committee of the Bar Council of
India)] thereon as it deems fit…”

ANALYSIS

Whether the negligence or "constructive negligence" if the Appellant amount to

professional misconduct.

The Supreme Court while deciding on the issue of negligence amounting to professional
misconduct, examined the facts and circumstances of the case, and found that the appellant was
in fact negligent due to failure on his part in attending the two cases because of which the
Government of Tamil Nadu has suffered ex-parte decrees. The court was unable to identify any
mala fide intention or deliberate inaction on part of the appellant for not attending the two
cases.

Therefore, the Supreme Court identified the need to address the issue of the Appellant’s
negligence or “constructive negligence” as had been dictated by the Bar Council of India,
amounting to Professional Misconduct.

Obiter Dicta
The judgment was not assisted by the opinions of the judges while forming the decision or
during the pronouncement of the judgment. Therefore, in the case, obiter dicta were absent,
and after defining the reasoning for the principle laid down and deriving a conclusion, the
judges proceeded directly by giving the Order in the matter.

Principle laid down.

While answering the aforementioned question, the Principle that the Supreme Court laid down
was, the for professional misconduct to be the outcome of negligence, the deciding factor is are
the facts of each case. While providing clarity on the concept of “professional misconduct”
with or without an element of moral turpitude and delinquency, the Apex Court stated that,
“Gross negligence in the discharge of duties partakes of shades of delinquency and would
undoubtedly amount to professional misconduct. Similarly, conduct which amounts to
dereliction of duty by an advocate towards his client or towards his case would amount to
professional misconduct. But negligence without moral turpitude or delinquency may not
amount to professional misconduct.” An analysis of the aforementioned principle, it can be
understood that to perceive an action involving negligence by a party in performing their duty,
the existence of delinquency is imperative to amount to professional misconduct without any
doubt. Additionally, when an advocate abandons the duty that they have towards their client or
case would be considered as professional misconduct. However, when there is negligence of a
party to perform their duty, by the negligence is not supported by moral turpitude or
delinquency, such negligence cannot be considered to amount to professional misconduct. The
Apex Court in the current matter, went on to analyse the aforementioned principle with the
facts of the case, stating that there was presence of negligence by the appellant, by an absence
of mala fide intention or deliberate inaction by the act of the appellant in not attending the two
cases.

Ratio Decidendi.
The Apex Court for the above stated analysis, cumulated the reasoning or ratio decidendi that,
“Mere negligence unaccompanied by any moral delinquency on part of a legal practitioner in
exercise of his profession does not amount to professional misconduct.” Court drove the above
reasoning by relying on the case “In re a vakil” 1 wherein, Chief Justice Coutts Trotter stated
that “negligence by itself is not professional misconduct; into that offence there must enter the
element of moral delinquency.” In the particular case, the judge did not provide any
suggestions, due to the reason that no case was made to be investigated and did not provide a
reflection adverse to professional honour of the party involved. Based on the judgment given
in, “PD Khandekar v. Bar Council of Maharashtra and Ors. 2”, the Apex Court in the present
case, drove its reasoning, that “Mere negligence unaccompanied by any moral delinquency on
the part of a legal practitioner in the exercise of his profession does not amount to professional
misconduct...” In the case it was held that, it would be unprofessional of an advocate to act in a
manner other than with good faith towards his client or case. On the occasion that an advocate
1
In re a vakil, 1926 ILR 49 Mad. 523.
2
PD Khandekar v. Bar Council of Maharashtra and Ors, AIR 1984 SC 110.
is trusted by his client with a brief, the advocate must in such a situation follow norms of
professional ethics and attempt to protect interests of his client due to his position of trust. The
case identified the significance of the fiduciary relationship of an advocate towards his client.
The Supreme Court identified the paramount duty of a counsel that is owed to one’s client. In
case, a person consults a lawyer for his advice, the person seeks the assistance of the
advocate’s requisite experience, skill and knowledge as a lawyer. In return the lawyer is
expected to give proper and dispassionate legal advice to the client for the protection of his
interests. Based on the two judgments above, the court arrived at the reasoning that, in the
present case, there was a failure on the part of the appellant to discharge his duties towards his
client. However, the Court identified that this failure was not deliberate. Giving head to the
heavy pressure of work coupled with lack of diligence on the part of his staff as well as on the
part of the Government of Tamil Nadu, his client, in not sending a responsible person with
papers to the office of the Government Pleader. For this reason, the court gave the reasoning
that the appellant could not be held responsible for his client's failure to attend the office, but
the appellant could not shift the blame entirely on his staff. As the head of the office, it would
have been the appellant’s responsibility to make sure that the work is properly attended to and
the staff performs its functions properly and diligently.

Decision of the Supreme Court.

Therefore, the Decision of Supreme Court in the present case was that, the appellant was
rightly held guilty of negligence by the Bar Council of India. However, in the absence of any
moral turpitude or delinquency on the Appellant’s part, the finding of the Bar Council of India
that his conduct in the facts and circumstances of this case amounts to professional misconduct,
could not have been sustained. Considering that, Bar Council of India itself had made note of
the various mitigating circumstances, the Supreme Court decided that the negligence on the
part of the appellant in these circumstances could not be construed as professional misconduct.

The Supreme Court in the present case, allowed the appeal and ordered no costs.

Was the decision Per Incuriam.

Before considering the correctness of a judgement and commenting on whether the decision
was Per Incuriam, the concept must be understood through the clarification provided in Hyder
Consulting (UK) Ltd. v. State of Orissa 3 where the Apex Court stated, “…The Latin expression
“per incuriam” literally means “through inadvertence”. A decision can be said to be given per
incuriam when the court of record has acted in ignorance of any previous decision of its own,
or a subordinate court has acted in ignorance of a decision of the court of record. As regards the
judgments of this Court rendered per incuriam, it cannot be said that this Court has “declared
the law” on a given subject-matter, if the relevant law was not duly considered by this Court in
its decision.” Therefore, to understand whether the judgment was rendered Per Incuriam,
consideration must be given to analyse if the relevant laws was applied while coming to the
decision. In the instant case, the Court not only considered the relevant laws under the
Advocates Act, 1961, but also the judicial precedents that that been set by the Apex Court on
similar matters on previous occasions. Based on the judicial precedent set in the case of In re a
vakil”4 and PD Khandekar v. Bar Council of Maharashtra and Ors. 5, the judges in the present
case, identified that the negligence by the appellant could not be considered to be professional
misconduct with the absence of moral turpitude and delinquency. Considering that there was
no ignorance of any previous decision of its own or relevant laws while rendering its decision
and declaring the law on the concept of “Gross negligence involving moral turpitude”, it can be
concluded that the decisions was not Per Incuriam.

Comment on decision.
The decision was made by Justice SC Agrawal and Hon'ble Justice Sujata V. Manohar after
thoroughly considering the contentions of the Appellant and the Bar Council of India along
with the factual matrix of the case. The judges scrutinised the conclusion drawn by the Bar
council of India while giving their judgment and order in the two cases that involved the
Appellant, wherein, he was held guilty for “constructive negligence” and reprimanded for not
having control of his office, thereby not attending the cases on behalf of his client and causing
losses to the Government of Tamil Nadu by the Ex Parte Decrees against them. In the decision,
the judges of the Supreme Court rightly took into account the mitigating factors that were taken
into account by the Bar Council of India such as the duty of the juniors in the office to present
papers of cases before the appellant, which caused the appellant to be ill-informed. Neither did
the Government care to depute a responsible officer to attend the office of the Government

3
Hyder Consulting (UK) Ltd. v. State of Orissa, (2015) 2 SCC 189.
4
In re a vakil, 1926 ILR 49 Mad. 523.
5
PD Khandekar v. Bar Council of Maharashtra and Ors, AIR 1984 SC 110.
Pleader. Therefore, the inaction of the appellant while not appearing for two cases, resulting in
an ex-parte decrees was identified by the Apex Court as his negligence but giving heed to the
mitigating factors, the Court was correct in identifying the lack of moral turpitude or
delinquency in contributing to professional misconduct. The Court in the present case,
thoroughly identified the facts and circumstances of the matter, in deciding that the negligence
of the appellant could not have amounted to professional misconduct and they failed to spot
and mala fide intentions or intentional inaction by the Appellant. Therefore, the decision was
rendered in a correct manner, accounting for relevant laws, judicial precedence and the factual
matric of the case.

CONCLUSION

In the light of the aforementioned judgment, it can be concluded that for negligence to amount
to professional misconduct, the presence of a degree of moral turpitude and delinquency is
imperative. In the absence of moral turpitude and delinquency, the negligence of an advocate in
fulfilling his duty towards his client would not amount to professional misconduct. The
presence of mitigating factors was considered enough to indicate that the negligence of the
appellant was not deliberate. However, the burden of his lapses could not be directly
transferred to the correspondents of the appellant. It was the duty of the appellant to ensure that
his office was in order and he was informed of the cases that he was in charge of. The rush of
work office and the appellant being kept in the dark was a necessary consideration in
determining the cause of the appellant’s inaction.

It is the obligation of an advocate to fully render his duties in ensuring the best interest of his
client and towards the case, by applying their legal acumen and expertise. An advocate must
not derelict his duties towards his client and if the advocate does not fulfil his obligation with
utmost good faith, he is responsible for professional misconduct. However, while coming to the
conclusion that mere negligence of an advocate would amount to professional misconduct, and
to enquire about the intention and presence of malice, the facts and circumstances of the case
must be weighed in.
 4. An Advocate v. Bar Council of India And Anr, AIR 1989 SC 245

FACTS
In this case the bona fide act of an advocate who in good faith acted under the instructions of
someone closely connected with his client and entertained a bona fide belief that the
instructions were given under the authority of his client.

The suit was a suit for recovery of Rs 30,098. The complainant (client) had entrusted the brief
to the appellant which he in turn had entrusted to his junior colleague (Respondent 2) who was
attached to his office and was practising along with him at his office at the material time. At the
point of time when the suit was withdrawn, Respondent 2 was practising on his own having set
up his separate office. On the docket of the brief pertaining to the suit, the appellant made an
endorsement giving instructions to withdraw the suit as it was settled.

(Client version of facts) The petitioner had entrusted a matter to Appellant to file a case against
Shri Anantaraju for recovery of a sum of Rs 30,098 with court costs and current interest. The
said suit was filed by the R2. The matter in dispute in the suit was not settled at all and the
Appellant without the knowledge and without his instructions had filed a memo stating that the
matter is settled out of court and got the suit dismissed and the appellant has also received half
of the institution court fee within 10 days since the date of the disposal of the suit. The
petitioner submits that he has not received either the suit amount or the refund of court fee and
he is not aware of the dismissal of the suit as it was settled out of court.

ISSUES
1) Whether an advocate acting bona fide and in good faith on the basis of oral instructions
given by someone purporting to act on behalf of his client, would be guilty of
professional misconduct or of an unwise or imprudent act, or negligence simpliciter, or
culpable negligence punishable as professional misconduct?
2) Whether a charge apprising him specifically of the precise nature and character of the
professional misconduct ascribed to him needs to be framed?
3) Whether in the absence of an allegation or finding of dishonesty or mens rea a finding
of guilt and a punishment of this nature can be inflicted on him?
 4) Whether the allegations and the finding of guilt is required to be proved beyond
reasonable doubt?
5) Whether the doctrine of benefit of doubt applies?

RULES
On a survey of the legal landscape in the area of disciplinary proceedings this scenario
emerges:

(1) In exercise of powers under Section 35 contained in Chapter V entitled "conduct of

advocates", on receipt of a complaint against an advocate (or suo motu) if the State Bar
Council has 'reason to believe' that any advocates on its roll, has been guilty of "professional or
other misconduct". Disciplinary proceeding may be initiated against him.

(2) Neither Section 35 nor any other provision of the Act defines the expression 'legal
misconduct' or the expression 'misconduct'.

(3) The Disciplinary Committee of the State Bar Council is authorised to inflict punishment,
including removal of his name from the rolls of the Bar Council and suspending him from
practice for a period deemed fit by it, after giving the advocate concerned and the 'Advocate
General' of the State an opportunity of hearing.

(4) While under Section 42(1) of the Act the Disciplinary Committee has been conferred
powers vested in a civil court in respect of certain matters including summoning and enforcing
attendance of any person and examining him on oath, the Act which enjoins the Disciplinary
Committee to 'afford an opportunity of hearing' (vide Section 35) to the advocate does not
prescribe the procedure to be followed at the hearing.

(5) The procedure to be followed in an inquiry under Section 35 is outlined in Part VII of the
Bar Council of India Rules (Published in Gazette of India on September 6, 1975 in part III
section (pages 1671 to 1697) made under the authority of Section 60 of the Act.

(6) Rule 8(1) of the said Rules enjoins the Disciplinary Committee to hear the concerned
parties that is to say the complainant and the concerned advocate as also the Attorney General
or the Solicitor General or the Advocates General. It also enjoins that if it is considered
appropriate to take oral evidence the procedure of the trial of civil suits shall as far as possible
be followed.
(7) Section 38: Appeal to the Supreme Court - Any person aggrieved by an order made by the
disciplinary committee of the Bar Council of India under Section 36 or Section 37.

ANALYSIS
Following is an issue-wise approach to the questions heard and responded to by the court.

(1) Whether a charge apprising him specifically of the precise nature and character of the
professional misconduct ascribed to him needs to be framed?

The court stated that an appropriate specific charge is required to be framed as the concerned
Advocate is expected to defend himself or herself. No doubt the Act does not outline the
procedure and the Rules do not prescribe the framing of a charge. But then even in a
departmental proceeding in an enquiry against an employee, a charge is always framed. Even if
the rules are silent, the paramount and overshadowing considerations of fairness would demand
the framing of a charge. The same has been established in a disciplinary proceeding initiated in
re: Shri 'M' an Advocate of the Supreme Court of India 6. Upon considering this precedent, the
court framed charges.

(2) Whether in the absence of an allegation or finding of dishonesty or mens rea a finding
of guilt and a punishment of this nature can be inflicted on him?

The charge in this case against the appellant was that he had withdrawn a suit as settled without
the instructions from the complainant. The withdrawal of suit took place under a special set of
circumstances wherein he honestly believed that the complainant desired to withdraw his case.

The complainant was introduced to the advocate by Mr. Gautam Chand. The appellant was
already handling a case on behalf of Gautam Chand against Anantharaju. The filing of a second
suit against Anantharaju took place in the presence of Mr. Gautam Chand. It was at the
instance and inspiration of Gautam Chand that the suit had been instituted by the complainant,
but in actuality, he was the nominee of Gautam Chand and that the complainant himself had no
real claim on his own.
6
In re: Shri 'M' an Advocate of the Supreme Court of India [1956] SCR page 811 (814)
(3) Whether the allegations and the finding of guilt are required to be proven beyond
reasonable doubt?

Yes, the charges against the appellant are grave in nature and must be proven beyond
reasonable doubt. The appellant has been charged with the allegation that he has withdrawn a
suit as settled without the instructions from the complainant. The appellant did not have any
dishonest motive, neither did he act in a manner that would indicate that he had been won over
by the other side for monetary considerations or otherwise. The defence of the appellant that he
had withdrawn the suit in the circumstances mentioned by him requires to be considered in
light of his admissions. The defence of the appellant being that the suit was withdrawn under
the oral instructions of the complainant in the presence of Gautam Chand and Anantharaju and
inasmuch as supported by the version of the appellant on oath, the matter was required to be
examined in this background. Assuming that the evidence of the appellant corroborated in
regard to the presence of the complainant was not considered acceptable, the question would
yet arise as to whether the withdrawal on the part of the appellant as per the oral instructions of
Gautam Chand, who had taken the complainant to the appellant for instituting the suit, would
amount to professional misconduct. This suggests that reasonable doubt exists and must be
taken into consideration as mens rea is an important factor in determining the consequences for
the appellant’s action.

(4) Whether the doctrine of benefit of doubt applies?

The Disciplinary Committee empowered to conduct the enquiry and to inflict the punishment
on behalf of the body, in forming an opinion must be guided by the doctrine of benefit of doubt
and is under an obligation to record a finding of guilt only upon being satisfied beyond
reasonable doubt. It would be impermissible to reach a conclusion on the basis of
preponderance of evidence or on the basis of surmise, conjuncture or suspicion.

It will also be essential to consider the dimension regarding mens rea. The court referred to the
case of L.D. Jaisinghani v. Naraindas N. Punjabi,7 and based upon the same stated that there is
also nothing to show that the Disciplinary Committee has recorded its finding based on facts
and its conclusion as regards the guilt in full awareness of the doctrine of benefit of doubt and
there is a need to establish the facts and the guilt beyond reasonable doubt.
7
L.D. Jaisinghani v. Naraindas N. Punjabi [1976] 3 SCR 354
As has been mentioned earlier, no charge has been formulated and framed, no issues have been
framed. The attention of the parties was not focussed on what were the real issues. The
appellant was not specifically told as to what constituted professional misconduct and what
was the real content of the charge regarding the professional misconduct against him. Hence,
the doctrine of benefit of doubt will be applied here, to give the appellant full opportunity to
prove himself guilt free in the absence of mala fide intention.

(5) Whether an Advocate acting bona fide and in good faith on the basis of oral
instructions given by someone purporting to act on behalf of his client, would be guilty of
professional misconduct or of an unwise or imprudent act, or negligence simpliciter, or
culpable negligence punishable as professional misconduct?

The court discussed that whether the appellant had acted in a bona fide manner under the
honest belief that Gautam Chand was giving the instructions on behalf of the complainant
required to be considered. If he had done so in a bona fide and honest belief would it constitute
professional misconduct, particularly having regard to the fact that no allegation regarding
corrupt motive was attributed or established.

Here it has to be mentioned that the appellant had acted in an open manner in the sense that he
had in his own hand made endorsement for withdrawing the suit, as settled and sent the brief to
his junior colleague. If the appellant had any oblique motive or dishonest intention, he would
not have made the endorsement in his own hand. No doubt Rule 19 contained in Section 2
captioned 'Duty to the clients' provides that an Advocate shall not act on the instructions of any
person other than his client or his authorised agent. If, therefore, the appellant had acted under
the instructions of Gautam Chand bona fide believing that he was the authorised agent to give
instructions on behalf of the client, would it constitute professional misconduct. In the event of
a charge of negligence being levelled against an Advocate, the question will have to be decided
whether negligence simpliciter would constitute misconduct. It would also have to be
considered whether the standard expected from an Advocate would have to answer the test of a
reasonably equipped prudent practitioner carrying reasonable workload.

A line will have to be drawn between tolerable negligence and culpable negligence in the sense
of negligence which can be treated as professional misconduct exposing a Member of the
profession to punishment in the course of disciplinary proceedings. With this, the court
remitted the matter back to the disciplinary committee so it could reconsider the matter in fresh
light upon its enlightenment by the court.

STARE DECISIS
The court took into consideration three cases in deciding the case, to establish that reasonable
doubt is a requirement in cases involving professional misconduct of any kind, as it is the mens
rea that plays the most important factor in determining the punishment herein. The cases
referred are (1) L.D. Jaisinghani v. Naraindas N. Punjabi, (2) In re: Shri 'M' an Advocate of the
Supreme Court of India and (3) O.N. Mohindroo v. District Judge, Delhi.

i. Is the court silent on any issue?

No.

ii. What is the principle laid by the court?

Reasonable and fair opportunity of showing cause shall be given to the appellant and the
precise charge of the exact content of the professional misconduct requires to be informed to
the appellant by the disciplinary committee so that he or she can rebut.

iii. Is there any Obiter dictum?

No.

iv. What is the ratio decidendi in the case?

The court was convinced that the appellant was not apprised of the exact content of the
professional misconduct attributed to him and was not made aware of the precise charge he was
required to rebut. The conclusion reached by the Disciplinary Committee in the impugned
order further shows that in recording the finding of facts on the three questions, the
applicability of the doctrine of benefit of doubt and need for establishing the facts beyond
reasonable doubt were not realised. Nor did the Disciplinary Committee consider the question
as to whether the facts established that the appellant was acting with bona fides or with mala
fides, whether the appellant was acting with any oblique or dishonest motive, whether there
was any mens rea, whether the facts constituted negligence and if so whether it constituted
culpable negligence. Nor has the Disciplinary Committee considered the question as regards
the quantum of punishment in the light of the aforesaid considerations and the exact nature of
the professional misconduct established against the appellant. The impugned order passed by
the Disciplinary Committee, therefore cannot be sustained. Since the court did not consider it
appropriate to examine the matter on merits on its own without the benefit of the finding
recorded by the Disciplinary Committee of the apex judicial body of the legal profession, it
considered it appropriate to remit the matter back to the Disciplinary Committee, upon
following the principle laid down in the case of O.N. Mohindroo v. District Judge, Delhi.8

It emphasized that the Bar Council of India must have an opportunity to consider whether it
would constitute an imprudent act, an unwise act, a negligent act or whether it constituted
negligence and if so a culpable negligence, or whether it constituted a professional misconduct
deserving severe punishment, even when it was not established or at least not established
beyond reasonable doubt that the concerned advocate was acting with any oblique or dishonest
motive or with mala fides.

This question will have to be determined in the light of the evidence and the surrounding
circumstances taking into account the doctrine of benefit of doubt and the need to record a
finding only upon being satisfied beyond reasonable doubt.

v. Is it a decision per incurium?

The decision is not per incuriam as the court followed the previous precedents and decided the
case in a just manner, further following the Natural Justice Principles of rule against bias and
audi alteram partem.

vi. What is the decision of the Supreme Court?

The court allowed the appeal, set aside the order of the Bar Council insofar as the appellant is
concerned and remitted the matter to the Bar Council of India so that it could redecide the case
by categorizing the mistake committed by the appellant and deciding whether it amounts to
professional misconduct or either of the sub-types under negligence. The court however made

8
(1971) 2 SCR 11.
it clear that it will not be open to the complainant to amend the complaint or to add any further
allegation. Evidence already recorded will continue to form part of the record and it will be
open to the Bar Council of India to hear the matter afresh on the same evidence. It will be open
to the Bar Council of India to consider whether the hearing of the matter has to be deferred till
the application for restoration is disposed of. The Bar Council of India was instructed to give
appropriate consideration to all these questions. The court made a special order that in case the
judgment rendered by this Court or any part thereof is reported in law journals or published
elsewhere, the name of the appellant shall not be mentioned because the matter is still sub
judice and fairness demands that the name should not be specified. It was here that the case
derived its name as An Advocate v. Bar Council or In re an Advocate without naming the
appellant. The appeal was disposed of accordingly.

vii. Fair comment on the decision – as to whether it is decided in a rightful manner or

fallible manner?

The decision of the Supreme Court is given in a rightful manner having consonance with the
laws as well as the precedents in deciding the case. While the court has rightly given the
appellant another chance by acknowledging his lack of mens rea, the court did not utilize its
powers to make a striking judgment. The Supreme Court in India commands an authoritative
position and it could have laid down guidelines as to what acts would constitute negligence
whereas what acts would constitute professional misconduct but it failed in making the position
clear due to which other matters shall arise as a result of this confusion. Had the Supreme
Court laid down guidelines, it would have resulted in uniformity in the decisions of the Bar
Council.

CONCLUSION
The existing provisions on the liability of legal representatives for ill advice, mistake or
negligence on their behalf are insufficient to impose any strict liability upon the counsel to
deter the issues faced at present by the judiciary in India. The courts are faced with issues such
as absenteeism, incomplete pleadings, non-payment of court fees and many others which are
jeopardizing the faith of the common public in the Indian judiciary. To ensure that the face of
the judicial and administration system is saved, measures must be implemented to bring the
legal practitioners within the ambit of the laws imposing strict liability upon them so as to
ensure that this kind of sloppy behaviour does not dominate the legal profession. Firstly, the
consumer protection laws must be considered wide enough to encompass advocates. Second,
the cases in English Courts must be taken as a precedent in establishing some executive bodies
which shall regularly check the representations made by advocates in the case, so that any
negligence reported is addressed immediately so that the client is not subjected to any losses.
Third, the Bar Association must be equipped with powers to give monetary reliefs to the client
in the form of damages or a refund of the amount paid to the practitioner.

5. Bar Council of Maharashtra v. M.V. Dabholkar Citation : AIR 1976 SC

242

Facts
The Bar Council of Maharashtra on 18 May, 1965 issued notices under Section 35 of the
Advocates Act, 1961 to the respondents. The notice was to inform the respondents of a suo
moto inquiry which was to be conducted against them. The reason being cited for the issuance
of the notice was stated as “that it came to the notice of the Bar Council of Maharashtra, the
respondents stood at the entrance of the Court House at the Presidency Magistrate’s Court,
Esplanade, Fort Bombay and solicited work and generally behaved at that place in an
undignified manner and the said acts amounted to professional and/or other misconduct.” To
facilitate the enquiry the Bar Council had constituted a disciplinary committee and the inquiry
proceedings were vested on the committee. After the committee had heard the evidence the
disciplinary committee which was formed by the Bar Council had found the respondents to be
guilty for professional misconduct. The committee had stated that the respondents would be
suspended for a period of three years and cannot practice as advocates for the said suspension
period. The suspension orders were to be operative from 1 August, 1973.

An appeal was filed to the appellate tribunal, that is, the Bar Council of India, which, as per the
prescription of Section 37 (1), referred the matter to the Disciplinary Committee for further
probe. The Bar Council of India reversed the order passed by the State Bar Council with the
reason that the said acts “do not cross the borderline of professional misconduct”. This verdict
was based on a three-point formula that- the advocates must have (i) solicited work; (ii) from a
particular person and (iii) with respect to a case.

It held that unless the three elements were satisfied it could not be said that an advocate had
acted beyond the standard or professional conduct and etiquette. Aggrieved by the decision of
the Bar Council of India, the State Bar Council approached the Supreme Court to do good the
losses, under the provision prescribed under Section 38 of the Advocates Act, 1961. Hence the
present appeal.

The present case would be analysed in detail.

Rules
 The respondents of the present case, who were practising criminal court advocates,
were charged with professional misconduct under Section. 35(1) of the Advocates Act,
1961, as they had situated themselves at the entry to the Magistrate Courts and snatched
documents and important briefs from lawyers on their arrival and created a huge
confusion regarding the fees and created a no-holds-barred solicitation in order to
secure work for themselves.
 The Disciplinary Committee appointed as per the provisions of S. 37(2) of the Act on
appeal to the order of suspension of such advocates, quoted Rule 36 framed under S. 49
1(c) of the Advocates Act, 1961 in order to be amenable to the disciplinary jurisdiction
the advocates must have (i) solicited work (ii) from a particular person and (iii) with
respect to a case. It held that unless the three elements were satisfied it could not be said
that an advocate had acted beyond the standard or professional conduct and etiquette.
 On an interpretation of Rule 36, framed under Section 49(c), the Apex Court held that
such a misrule chalks out a wholesome framework for professional conduct and such a
dissection of the rule done by the Disciplinary Committee was abhorred.
 The procedure adopted by the State Bar Council in referring the cases to its
Disciplinary Committee is in due compliance with S. 35(1) of the Advocates Act. The
Supreme Court held that the requirement of "reason to believe" cannot be converted
into a formalized procedural road block, it being essentially a barrier against frivolous
enquiries.
 S. 35 of the Act, which enumerates the elements of professional misconduct by
advocates should be understood in an amalgamation with the high moral tone and the
 considerable public service the bar is associated with and its key role in the
developmental and dispute-processing activities and, above all, in the building up of a
just society and constitutional order.

Issues:

 Whether or not the Bar Council of Maharashtra falls under the ambit of “any person
aggrieved by an order made by the Bar Council of India” under Section 38, Advocates
Act, 1961.
 Whether or not the State Bar Council have an appeal to the present Court?

Analysis:
The analysis of the judgment would be primarily on following observations of the Court, the
Hon’ble Court had held that advocates have to follow the standards of professional conduct and
had stated that bar council would fall under the ambit of “person aggrieved”. The hon’ble
Court had also observed that legal profession is a noble profession stems out to explain that it
cannot be advertised as it could lead to curtailing professionalism, bringing about bias,
undermining the lawyer’s self-worth and dignity. And the other reason being that the legal
profession can be linked to social service and hence misleading advertising could lead to loss in
the quality of the profession. On the detailed analysis of the present matter, it can be
understood that the scheme of the Advocates Act, 1961 provides for the constitution of bar
councils in each State which would act as a body corporate. The purpose of the bar councils
being to ensure the advocates follow the standards of professional conduct and abide to the
basic etiquettes. The disciplinary committees are constituted by the bar council to conduct
disciplinary proceedings. When the disciplinary committee exercises its powers to suspend or
take any such action against an advocate, the committee is not adjudicating the matter between
the parties and the just because the bar council had placed the matter before the committee it
does not take up the role of a prosecutor like that of a criminal case. Further on understanding
he scope of “person aggrieved” the term has been used in multiple legislations and the
definition of the term ought to be ascertained from the meaning and scope of each statute. In
certain Acts the term is given a wide scope of interpretation whereas in some it has a narrow
approach. The term “person aggrieved” in Section 37 and 38 of the Advocates Act has to be
construed in a liberal manner and should not be subject to restrictions. If the answer is yes, the
bar council is an aggrieved party then the reason would be that they want the advocates to
follow a certain level of etiquettes and the standards of professional conduct. Stating the above
reasons, the appeal was permitted as it was established that the Bar council is an aggrieved
party and that the body corporate is entitled to appeal against the order of the committee. On
further analyses of the issue, it is observed that a uniform approach cannot be construed. The
concept of statutory interpretation has to be taken into consideration. The Advocates Act is that
which ensures that a certain level of professional standard is being followed and the Bar
Council is a body corporate which is an institute promoting social justice and public justice. It
is a well-accepted principle that a body created by a statute must conform to the provisions of
the regulating statute. In the present case, the power of taking any punitive action against an
Advocate for misconduct vests under Section 35 of the 1961 Act only with the disciplinary
committee of the State Bar Council (respondent). It is trite law that a body created by a statute
only has powers granted expressly or by implication in that statute. There is no specific or
implied power conferred on a State Bar Council under the 1961 Act to take punitive action
against an Advocate while simultaneously referring a complaint against him to the disciplinary
committee. A statutory body like the State Bar Council has to justify exercise of its powers
within the four corners of the statute which has created it. The State Bar Council (respondent)
had been unable to satisfactorily discharge this onus in the case. This case serves to highlight
the importance of procedure, which was followed in the present case, as the State Bar Council
promptly made reference to the Disciplinary Committee and did not prescribe any punishment
of suspension by itself. Moving further to the issue pertaining to legal professions and
advertising, it can be understood that the legal profession is one that serves the society at large
and that false advertising would cause loss in the quality of the profession. Chief Justice Ray,
in his opinion, held that a State Bar Council is a “person aggrieved” and is entitled to appeal
against orders in disciplinary proceedings against members of the Bar of the State. The State
Bar Council is the “keeper of the conscience” and the guardian of the interests of members of
the Bar. It acts “as the protector of the purity and dignity of the profession.” To quote Justice
Krishna Iyer, “the paramount concern of the Bar Councils is the lawyer, the public and
professional responsibility. Anything that hurts the health of this system is a social trauma, a
legal grievance, a special injury, for them (Bar Council).” Therefore, its function in relation to
disciplinary proceedings, is to entertain complaints against Advocates, and, when there is a
prima facie case of misconduct, to initiate proceedings by sending the complaint to its
Disciplinary Committee to ensure that that correct decisions are given upon matters involving
allegations of misconduct against members of the Bar of the State. Furthermore, the court
established that the State Bar Council operates through its Committees. Each Committee has
distinct and separable functions. Each could, therefore, be said to have a “persona” and an
identity of its own which is distinguishable from that of the Bar Council as a whole. So, when
the State Bar Council has sent a case to its Disciplinary Committee, under Section 35 of the
Act, that Committee proceeds as an independent and impartial authority. A distinction was
drawn by Justice Beg about the two different capacities in which the State Bar Council
functions - an executive capacity, in which it acts as the prosecutor through its Executive
Committee, and a quasi-judicial function, which it performs through its Disciplinary
Committee. This distinction shows that there is no merger between the prosecutor and the
Judge here and therefore, a State Bar Council can, in its executive capacity, in a disciplinary
proceeding against an advocate on its roll, either at the initial or the appellate stages. 

Lastly, Justice Krishna Iyer emphasized on the role of the Bar Council by stating that “the Bar
is not a private guild, like that of ‘barbers butchers and candlestick-makers’ but, by bold
contrast, a public institution committed to public justice and pro bono public service. If
pathological cases of member misbehaviour occur, the reputation and credibility of the Bar
suffer a mayhem and who, out of the Bar Council, is more concerned with and sensitive to this
potential disrepute the few black sheep bring about?” Justice Krishna Iyer’s observation
essentially brings to light the crucial role played by Bar Councils and how mere technicalities
cannot supersede the important role that the Bar Council plays.  In the case of Vijay Bharat
Verma v. Bar Council Of Punjab And Haryana 9 (Punjab & Haryana High Court, 2020) the
court held that the Advocates Act and the BCI Rules do not bestow power on the State Bar
Council to suspend an Advocate's licence to practice when the matter has been referred to a
disciplinary committee. In this case, the petitioner posted derogatory comments on Facebook
about the judiciary and lawyers amounted to gross misconduct and in such a situation the State
Bar Council (respondent) suspended his licence during the pendency of the disciplinary
proceedings. Suspending the petitioner’s licence to practice has been held as a very severe and
stringent action and is in excess of the jurisdiction vested in the State Bar Council. The right to
the petitioner's livelihood has been suspended without the State Bar Council (respondent)
having any power to do so under the 1961 Act and the BCI Rules. The Disciplinary Committee
on enquiry may inflict any of the penalties prescribed under sub-section (3) of Section 35. The
State Bar Council has thus no power to impose any penalty. When the Act does not confer
9
CWP-13235-2020 (O&M) 1 217
jurisdiction on the State Bar Council to inflict any punishment, a fortiori, it cannot pass any
interim order imposing penalty". It is a well-accepted principle that a body created by a statute
must conform to the provisions of the regulating statute. In the present case, the power of
taking any punitive action against an Advocate for misconduct vests under Section 35 of the
1961 Act only with the disciplinary committee of the State Bar Council (respondent). It is trite
law that a body created by a statute only has powers granted expressly or by implication in that
statute. There is no specific or implied power conferred on a State Bar Council under the 1961
Act to take punitive action against an Advocate while simultaneously referring a complaint
against him to the disciplinary committee. A statutory body like the State Bar Council has to
justify exercise of its powers within the four corners of the statute which has created it. The
State Bar Council (respondent) had been unable to satisfactorily discharge this onus in the case.
This case serves to highlight the importance of procedure, which was followed in the present
case, as the State Bar Council promptly made reference to the Disciplinary Committee and did
not prescribe any punishment of suspension by itself.

Conclusion:
The case, “Bar Council of Maharashtra V. M.V. Dabholkar” was a matter pertaining to
professional misconduct of criminal lawyers and how they had behaved in manner subservient
to what was expected of them. The profession of being a lawyer required high levels of ethics
and manners to be followed in order to act in an orderly manner. The hon’ble Supreme Court
had accepted the appeal filed by the Bar Council, wherein the focal issue was whether or not
the bar council would fall under the ambit of “person aggrieved” as per the provisions of
Section 38 of the Advocates Act, 1961. The apex Court on citing its observations had held that
the bar council would be construed as a “person aggrieved” in the present instance of
professional misconduct by the advocates. The Court had further stated that advertising of legal
profession shall amount to professional misconduct. It is evident to note that the Legal
profession is not a trade, and no commercial practice or merchandising must vulgarize the legal
profession.

6. Bar council of maharashtra v. M.v.  Dabholkar and others

 FACTS 

The State Bar Council, referred to as the Appellant herein, has filed the present appeal seeking
to  reverse the order passed by the Bar Council of India, one of the Respondents. 

The roots of this appeal can be traced back to when an assembly of practitioners flocked
potential  litigants at the entry to the Magistrate Courts, to grab onto their case files, often
resulting in  physical squabbles, and solicit cases for themselves. This mass misbehavior
alarmed the public  the High Court of Maharashtra filed a complaint to the Bar Council of
Maharashtra. 

The Disciplinary Committee of the Bar Council of Maharashtra, as mentioned under Section
35  (1) of the Advocates Act, 1961, motioned for the disposal of the case. On perusal of the
matter,  and due to its voluminous nature, all 8 cases so files were tried together as a unified
proceeding  and was disposed off with a common judgement by the Disciplinary Committee of
the Bar Council  of India. 

One such Respondent, A. K. Doshi contended that “the resolution of the Bar Council does not
ex  facie disclose that it had reason to believe that the advocates involved were guilty of
professional  misconduct”. The Court contended that “the requirement of ‘reason to believe’
cannot be  converted into a formalized procedural road block, it being essentially a barrier
against frivolous  enquiries. It is implicit in the resolution of the Bar Council, when it says that
it has considered the  complaint and decided to refer the matter to the disciplinary committee,
that it had reason to  believe, as prescribed by the statute.” 

The Disciplinary Committee of the State Bar Council held the nature of the acts to be
professional  misconduct, suspending the said practitioners for three years. 

An appeal was filed to the appellate tribunal, that is, the Bar Council of India, which, as per
the  prescription of Section 37 (1), referred the matter to the Disciplinary Committee for further
probe.  The Bar Council of India reversed the order passed by the State Bar Council with the
reason that  the said acts “do not cross the borderline of professional misconduct”. This verdict
was based on  a three-point formula that- the advocates must have (i) solicited work; (ii) from a
particular person  and (iii) with respect to a case.

It held that unless the three elements were satisfied it could not be said that an advocate had
acted  beyond the standard or professional conduct and etiquette. 
Aggrieved by the decision of the Bar Council of India, the State Bar Council approached the 
Supreme Court to do good the losses, under the provision prescribed under Section 38 of the 
Advocates Act, 1961. Hence the present appeal. 

ISSUES 
1. Whether the prosecuted practitioners are guilty of professional misconduct?

2. Was there a prima facie case of professional misconduct? 

3. Whether the State Bar Council be considered “a person aggrieved” to maintain an appeal
under the Advocates Act, 1961?  

RULES 

1. Rule 36 of the Rules of the Bar Council of India: Duty towards Colleagues States that an
advocate shall not solicit work or advertise either directly or indirectly,  whether by circular,
advertisements, touts, personal communications, interviews not  warranted by personal
relations, furnishing newspaper comments or procuring his  photograph to be published in
connection with cases in which he has been engaged or  concerned. 

2. Section 35 of The Advocates Act, 1961: Punishment of advocates for misconduct. States
that where on receipt of a complaint or otherwise a State Bar Council has reason to  believe
that any advocate on its roll has been guilty of professional of other misconduct, it  shall refer
the case for disposal to its disciplinary committee. The State Bar Council may,  either of its
own motion or on application made to it by any person interested, withdraw a  proceeding
pending before its disciplinary committee and direct that inquiry to be made by  another
disciplinary committee of the State Bar Council. The disciplinary committee of a  State Bar
Council shall fix a date for the bearing of the case and shall cause a notice to be given to the
advocate concerned and to the Advocate-General of the State. The disciplinary  committee of
the State Bar Council may make any of the following orders namely, (a)  dismiss the
complaint, or where the proceedings were instated at the instance of the State  Bar Council,
direct that the proceedings be filled. (b) reprimand the advocate, (c) suspend  the advocate for
such period as it may deem fit. (d) remove the name of the advocate from  the State roll of
advocates. 

3. Section 36 of The Advocates Act, 1961: Disciplinary powers of Bar Council of India.
Speaks of the disciplinary powers of the Bar Council of India and provides that where on 
receipt of a complaint or otherwise the Bar Council of India has reason to believe that any 
advocate whose name is not entered on any State roll has been guilty of professional or  other
misconduct, it shall refer the case for disposal to its disciplinary committee. The  disciplinary
committee of the Bar Council of India may either of its own motion or on a  report by any State
Bar Council or on in application made to it by any person interested,  withdraw for inquiry
before itself any proceeding for disciplinary action against any advocate pending before the
disciplinary committee of any State Bar Council and dispose  of the same. 

4. Section 37 of The Advocates Act, 1961: Appeal to the Bar Council of India. Speaks of the
appeal to the Bar Council of India. This section states that any person  aggrieved by an order of
the disciplinary committee of a State Bar Council or the Advocate General of the State may,
within sixty days of the date of communication of the order,  prefer in appeal to the Bar
Council of India. 

5. Section 38 of The Advocates Act, 1961: Appeal to the Supreme Court Provides for appeal
to the Supreme Court. Section 38 states that any person aggrieved by  an order made by the
disciplinary committee of the Bar Council of India under Section 36  or Section 37 or the
Attorney-General of India or the Advocate-General of the State as the  case may be, may prefer
an appeal to the Supreme Court.

6. Section 49 of The Advocates Act, 1961: General power of the Bar Council of India to 
make rules.  

Provides that the Bar Council of India may make rules for discharging its functions under  the
Act and in particular such rules may prescribe inter alia the standards of professional  conduct
and etiquette to be observed by advocates. The Bar Council of India in exercise of  the rule-
making power under Section 49(c) of the Act on July 10 and 11, 1954 approved  the rules of
standards of professional conduct and etiquette. The standards of professional  conduct and
etiquette are described in five sections. The first section deal with duty of  advocates to the
Court. The second section speaks to duty of advocates to the clients. The  third section consists
of rules regarding duty of advocates to opponent. The fourth section  prescribes duties of
advocates to colleagues. The fifth section lays down restriction on  advocates on other
employments. 

ANALYSIS 
In deciding on the first issue, the Hon’ble Apex Court contended that it was only fair on the
Respondents they be heard individually, rather than all the eight cases heard in unison. 
Starting with Mr. Dabholkar, one of the Respondents, was a senior Prosecutor and the only
witness  that appeared for him testified– “I have not seen him actually snatching away the
papers. I did not  hear the talk Mr. Dabholkar had with the persons”. Mr. Dabholkar was about
68 years old and  wished to retire soon after completing his remaining 4 cases, for which he
had already charged  fees, and during the present proceedings had decided virtually to step out
of the bar. Considering  these facts and the weak evidence against him, the Supreme Court did
not state any specific order  against him. 

Another Respondent Shri Bhagthani had not appointed a counsel, nor appeared in person, but
upon  examination the Court found very little to hold him liable for. Hence saw no need to
punish him. 

Mr. Talati, another one of the Respondents, represented by Mr. Zakiruddin, pleaded to show
some  consideration towards the Respondent. And they further pleaded that he was in poor
circumstances  and had suffered because of it. They also pleaded that he would practice proper
professional conduct if he was given the chance to practice again. The court upon consideration
of the said  facts, reduced his suspension, as ordered by the State Bar Council. 

Mr. Kelawala, represented by Mr. Zaki, another one of the Respondents pleaded that he was 
purblind and was ready to give an undertaking to the Court that he would no longer practice
his  profession. Also, there was considerably little evidence against him. In view of these, the
court  held that Mr. Kelawala and Mr. Zaki are not to continue their practice. 

Mr. Dixit for whom Shri Gannule appeared, submitted evidence against this lawyer, but was 
inadequate to prove him guilty of misconduct. Hence, the Respondent absolved from
professional  misconduct. 

Mr. Mandalia, another one of the Respondents that failed to appear either through a counsel or
in  person. The lack of evidence against him was not helpful if his act could amount to
“soliciting”,  hence no proof of professional misconduct. 

Mr. Doshi, the only contesting Respondent, pleads guilty and pursues his plea with righteous 
persistence and challenges the evidence and its credibility projecting his grievance about 
processual improprieties. Upon examining the witness and the background of Mr. Doshi, the
Court  ruled that he wasn’t guilty of professional misconduct but reprimanded him for the same
and  cautioned him to refine himself in advocacy. 
Shri Raisinghani, another Respondent, although is 65 years old, the evidence shows that he has 
physically fought two rival advocates in the course of snatching the briefs from clients,
entering  the criminal courts. One of these fights resulted in his trousers being torn and the
other assault by  him was on Mr. Mandalia, one of the respondents in these appeals. 

It was also noted that he was a refugee from Pakistan and made money only by appearing at
the  Magistrate Courts. He showed remorse for his actions, and prayed that he would go
nowhere close  to professional pollution in the last years of his career. The court upon hearing
this, did not absolve  him, but rather reduced his suspension until the 31st of December, 1975. 

In addressing the second issue of “professional misconduct”, Justice Krishna Iyer stated that: 

“Be it remembered that the central function of the legal profession is to promote the 
administration of justice. If the practice of law is thus a public utility of great implications  and
a monopoly is statutorily granted by the nation, it obligates the lawyer to observe  scrupulously
those norms which make him worthy of the confidence of the community in  him as a vehicle
of justice-social justice. The Bar cannot behave with doubtful scruples or  strive to thrive on
litigation.” 

It lit up the path to notice the nobility the legal profession holds and how advertising of legal 
profession shall amount to professional misconduct. It is evident to note that the Legal
profession  is not a trade, and no commercial practice or merchandising must vulgarize the
legal profession. 

It also held that the Appellate Tribunal has erred in the application of Rule 36 of the Bar
Council  Rules, as it was only promulgated in 1965, post the Amendment and the said act took
place way  before that. This approach of the Bar council of India was heavily reprimanded by
the Supreme Court. It  was held that restrictive interpretation of the relevant rule by splitting up
the text does not imply that the  conduct of the advocates was warranted or justified. The
standard of conduct of advocates flows from the  broad cannons of ethics and high tome of
behavior. 

Justice Krishna Iyer stated that: 

“the canon of ethics and propriety for the legal profession totally taboo conduct by way
of  soliciting, advertising, scrambling and other obnoxious practices, subtle or
 clumsiness, for  the betterment of the legal business. The law is not a trade, briefs no
merchandise and to  the heaven of commercial competition or procurement should not
vulgarize the legal  profession”. 

It is the duty of an advocate to fulfill the abovementioned duties to his colleagues. The object
of  framing this rule is to safeguard the interest of profession itself. Advocacy is and profession
and  not a business. The restriction put on this profession under the said rule is Constitutional
and not  violative to Article 19(1)(g) and Article 21 of the Constitution. Moreover, such
restrictions are  just, fair, and reasonable and not arbitrary, fanciful and evasive. It satisfies the
twin test given in  Article 14 of Constitution. i.e. the classification is just, fair and reasonable
and there is Nexus  between the object and classification. The object is to achieve the
efficiency of advocates to the legal profession, to safeguard the interest of both advocate as
well as public at large and the better  administration of Justice for which the legal profession is
a partner with the judiciary. 

In deciding the last issue i.e. When the question arose for consideration of the Bar Council of
India  as an “aggrieved person”, the Court referred to the findings in Adi Pherozshah Gandhi vs
H. M.  Seervai,1 where an appeal filed by the Advocate General of Maharashtra to the Bar
Council of  India was questioned, the Court held that the right of appeal is a statutory right and
is invariably  confined to an aggrieved person or a person that claims to be aggrieved. And that
the interests of  the Bar Council is to uphold professional conduct and etiquette of the
advocates enrolled under it. 

The Bar Council acts as a sentinel of professional code of conduct and is vitally interested in
the  rights of the advocates as well as the purity and dignity of the profession, giving it all the
more  reason to be considered an “aggrieved party”. 

The Court lastly held that  

“the Bar Council functions in a dual capacity, one as the prosecutor through its
Executive  Committee and the other quasi-judicial performed through its Disciplinary
Committee.  Hence, being the prosecutor, the State Bar Council would be an
‘aggrieved person’ and  therefore, the appeal under section 38 of the Advocates Act,
1961 would be maintainable.” 
PRINCIPLES LAID DOWN  

1. Duties Of An Advocate 

It is outrightly highlighted that an advocate must practice in utmost fairness and must not
forget  his duty towards his colleagues, of which not soliciting work is also a duty. And the
other duty  advocates owe to each other is to not pursue his profession in rivalry or in the spirit
of competition. 

2. Advertising The Legal Profession 

The fact that the legal profession is a noble profession stems out to explain that it cannot be 
advertised as it could lead to curtailing professionalism, bringing about bias, undermining the 
lawyer’s self-worth and dignity. And the other reason being that the legal profession can be
linked  to social service and hence misleading advertising could lead to loss in the quality of
the  profession. 

3. Professional Misconduct And Punishment For It 

The Court in this case has seriously condoned the disturbing behaviour of the advocates and
has  put forth a fine line of distinction for when an act can qualify as a professional misconduct
and has  henceforth stood as an exemplary case. 

Therein, the Apex Court laid down the principle that “professional ethics cannot be contained
in  a Bar Council rule nor in traditional cant in the books but in new canons of conscience
which will  command the member of the calling of justice to obey rules or morality and
utility.” Misconduct  of advocates should thus be understood in a context-specific, dynamic
sense, which captures the  role of the advocate in the society at large. 

OBITER DICTA  

Justice Krishna Iyer, highlighting the reason to save the legal profession from professional 
misconduct opined that: 

“The vital role of a lawyer depends on his probity and professional conduct. The
central function  of the legal profession is to promote the administration of justice. (...)
The Bar cannot behave with  doubtful scruples. Canons of conduct cannot be
crystallized into rigid rules, but ought to be felt  by the collective conscience of the
 practitioners as a whole. (...) For the practice of law with  expanding activist horizons,
professional ethics cannot be contained in a Bar Council rule or in  the books. Mutual
confidence in the discharge of duties, along with a correlation between the  Bench and
the Bar, smoothen the movement of the chariot of justice. As a responsible officer of 
the court, a counsel has an overall obligation to assist the courts in a just and proper
manner.

Zeal and enthusiasm are traits of success in a profession, but over-zealousness and
misguided  enthusiasm have no place in the personality of a professional”.  

Justice Krishna Iyer also opined that  

“The rule of law cannot be built on the ruins of democracy, for where law ends tyranny
begins. If   such be the keynote thought for the very survival of our Republic, the
integral bond between the   lawyer and the public is unbreakable. And the vital role of
the lawyer depends upon his probity  and professional life-style. Be it remembered that
the central function of the legal profession is to  promote the administration of justice.
If the practice of law is thus a public utility of great  implications and a monopoly is
statutorily granted by the nation, it obligates the lawyer to observe  scrupulously those
norms which make him worthy of the confidence of the community in him as a  vehicle
of justice-social justice. The Bar cannot behave with doubtful scruples or strive to
thrive  on litigation.” 

RATIO DECIDENDI  

The Apex Court held that the Bar Council functions in a dual capacity, one as the prosecutor
through its Executive Committee and the other quasi-judicial performed through its
Disciplinary  Committee. Hence, being the prosecutor, the State Bar Council would be an
‘aggrieved person’  and therefore, the appeal under section 38 of the Advocates Act, 1961
would be maintainable. 

AUTHORS COMMENT  

The author of this paper would like to offer dissent from the ratio of this case. It believes that
the  Court has been quite restrictive in its approach, especially in today’s times. In the age of 
information and commercialization, the reasons based on the ground that law is a “noble” 
profession cannot be sustained because consumers of legal services are entitled to obtain the
best  value for their investment, similar to any other service. Every litigant ought to be
provided with a  platform from where he can identify the most suitable legal professional.  

Though the law prohibiting legal advertising in India is founded on the British Victorian
system,  our law shows a trend of resisting change as we have not developed the same in light
of the changing nature of legal services. A critical analysis of the consequences of Rule 36
would lead to  absolutely absurd conclusions as it does not permit business cards, seminars,
conferences,  ceremonies, directory listings, issuance of circulars, election manifestoes, address
and court of  practice and even oral communication of the fact that a person is an advocate.  

In the opinion of the author, advertising per se ought not to be barred. Instead, as long as an  
advertisement promotes legal awareness and gives consumers i.e. clients and potential clients,
an  opportunity to evaluate the competence of a legal professional, it should be permitted by
way of  regulating it. Regulated advertising poses some undeniable advantages such as
opportunities to  novice lawyers, right to information and awareness, global recognition,
awareness and education.  

The BCI should lay down specific rules as to the subject matter and kind of advertising that
may  be permitted. This fulfils the need for advertising, while at the same time, sufficient
checks and  balances are provided for in order to prevent unscrupulous advertising. The
advantage of such a  mechanism is that it would enable the BCI to retain a regulatory role in
preserving the high  standards of the profession, and simultaneously provide a fair ground for
advocates to publicize their services and for consumers to exercise their right to information.  

CONCLUSION 

This case went on to be set the benchmark for future in determining the baseline for
professional  misconduct and hence facilitated in drawing fine lines of differentiation in
preserving the legal  profession to be a noble one. 

The discussion of this case can be steered into the direction of dissecting whether the legal 
profession would make for a trade or not, hence lies the question if it should be advertised or
not.  With lawyers just about everywhere in the expanse of this country, it is oddly satisfying to
notice  that active advertising of the profession is a firm no-no. The legal profession not being a
trade  needs no advertising as there is really no need to boast of the profession. 

It simply proposes an unwanted dismay amongst the advocates and they cannot afford to have
such  palpable tension amongst each other. The goal is to not let one advocate have an added
advantage over the other, and certainly the suppression of advertising, a reason for it. It is
necessary for  advocacy to live up to its claims of being a noble profession. 

Unfortunately, in practicality, many law firms although claim not to advertise, use websites or 
other sources laying out information related to the firm and claim monopolistic market, putting 
various smaller firms and independent practitioners out of work.

7. P.D. Khandekar v. Bar Council of Maharashtra and Ors., (1984) 2 SCC

556
BRIEF FACTS OF THE CASE:

The complainants alleged various acts of professional misconduct against the appellant and
Agavane. According to them, the appellant and agavane sometimes impersonated as other
advocates for whom the briefs were meant and at times they directly approached the clients and
adopted questionable methods charging exorbitant fees.

On January 7, 1974 the appellant and Agavane are alleged to have got the remarriage of a
couple S.B. Potdar and Smt. Leelawati Dhavale performed although their divorce was not
legal. The accusation is that the appellant and Agavane induced Potdar and Smt. Dhavale to
part with Rs. 100 towards their professional fee on the faith of an assurance that the affidavit
sworn by them before the Sub-Divisional Magistrate, Poona to the effect that they had
divorced their respective spouses and had got married at Poona on January 7, 1974 as per
Hindu rites would be sufficient proof of their marriage.
On February 22, 1974 the appellant and Agavane drew up an affidavit containing a recital that
Smt. Sonubai Girju Valekar of Loni Bhapkar, Tehsil Baramati, District Poona had made a gift
of her lands to her grand-daughter Smt. Mangala Ramesh Ghorpade. The charge is that she
had met all the lawyers except these two and all of them advised her to give the market value
of the land intended to be gifted and pay ad valorem stamp duty thereon indicating the
amount of stamp duty and the registration charges payable, but these two lawyers told her that
she should not unnecessarily spend a large amount over the stamp duty and registration
charges and they would instead have the work done within an amount of Rs. 50 which was
finally settled at Rs. 45 (Fourty Five). A group of 12 advocate practicing in two courts of S.D.
Ms in the collectorate of Pune are the complainants both the state bar council and Bar Council
of Delhi through its disciplinary committee found the appellant and one Agvane Guilty of
giving improper legal advice and held the charge of professional misconduct provided the and
suspended the appellant for a period of 4 months and Agvane for a period of 2 months
therefrom. Hence, the present appeal.

ISSUES RAISED:

1. Whether the appellant has committed professional misconduct or not?

2. Whether there lies a difference between giving wrong legal advice or improper legal
advice and whether an advocate can be held guilty for misconduct while giving such
advice?
3. Was the order of the disciplinary committee of the Bar Council of India justified in
holding the appellants guilty of the professional misconduct and punishing them for the
same?

RELEVANT LEGAL PROVISIONS

1. Section 35(1) of the Advocates Act, 1961 provides as under:

“35. Punishment of advocates for misconduct — (1) Where on receipt of a complaint or

otherwise a State Bar Council has reason to believe that any advocate on its roll has been
guilty of professional or other misconduct, it shall refer the case for disposal to its
disciplinary committee.

(1A) The State Bar Council may, either of its own motion or on application made to it by any
person interested, withdraw a proceeding pending before its disciplinary committee and
direct the inquiry to be made by any other disciplinary committee of that State Bar Council.

2. Section 38 of the Advocates Act, 1961 provides as under:

“38. Appeal to the Supreme Court.—Any person aggrieved by an order made by the
disciplinary committee of the Bar Council of India under section 36 or section 37(2)[or the
Attorney-General of India or the Advocate-General of the State concerned, as the case may
be,] may within sixty days of the date on which the order is communicated to him, prefer an
appeal to the Supreme Court and the Supreme Court may pass such order 1[(including an
order varying the punishment awarded by the disciplinary committee of the Bar Council of
India)] thereon as it deems fit:

Provided that no order of the disciplinary committee of the Bar Council of India shall be
varied by the Supreme Court so as to prejudicially affect the person aggrieved without giving
him a reasonable opportunity of being heard..

JUDGEMENT BY THE COURT:

 The finding that the appellant is not guilty of professional misconduct.

 The sentence awarded by the disciplinary committee of the bar council of India
suspending the appellant for a period of 4 months and Agvane for a period of 2 months
is set aside. The proceedings drawn against them under Sub-section (1) of Section 35 of
the Advocates Act, 1961 are dropped.
 Mere negligence unaccompanied by any moral delinquency on the part of a legal
practitioner in the exercise of his profession does not amount to professional
misconduct.
 For an advocate to act towards his client otherwise than with utmost good faith is
unprofessional. When a person consults a lawyer for his advice, he relies upon his
requisite experience, skill and knowledge as a lawyer and the lawyer is expected to
follow norms of professional ethics, give proper and dispassionate legal advice to the
client for the protection of his interests.
 Nothing should be done by any member of the legal fraternity which might tend to
lessen in any degree the confidence of the public in the fidelity, honesty and integrity of
the profession. For an advocate to act towards his client otherwise than with utmost good
faith is unprofessional. It is against professional etiquette for a lawyer to give that an
advocate should accept employment with such motive or so long as his client has such
understanding of his purpose. It is professionally improper for a member of the bar to
prepare false documents or to draw pleadings knowingly that the allegations made are
untrue to his knowledge. Thus, if improper legal advice is dispelled, it shall amount to
professional misconduct.
ANALYSIS:
In the instant appeal, the Supreme Court observed that there is a difference between the
giving of improper advice and giving of wrong legal advice. Mere negligence unaccompanied
by any moral delinquency on the on the part of legal practitioner in the exercise of profession
does not amount to professional misconduct.

In para 8 of the judgment the apex court made reference to the re G. Mayor Cooke [1889] 33
Sol. Jour. 397 in which it was held that “Negligence by itself is not professional misconduct;
into that offence there must enter the element of moral delinquency. Of that there is no
suggestion here, and we are therefore able to say that there is no case to investigate, and that
no reflection adverse to his professional honour rests upon Mr. M.”

In Para 9 of the judgment, the apex court highlights importance professional conduct and
ethics by placing reliance on P. An Advocate ILR [1933] 12 Rang. It was held in the
judgment that for an advocate to act towards his client otherwise than with utmost good faith
is unprofessional. When an advocate is entrusted with a brief, he is expected to follow norms
of professional ethics and try to protect the interests of his client in relation to whom he
occupies a position of trust. Counsel's paramount duty is to the client, when a person consults
a lawyer for his advice, he relies upon his requisite experience, skill and knowledge as a
lawyer and the lawyer is expected to give proper and dispassionate legal advice to the client
for the protection of his interests. An advocate stands in loco parentis towards the litigants
and it therefore follows that the client is entitled to receive disinterested, sincere and honest
treatment especially where the client approaches the advocate for advice in times of need. The
members of the legal profession should stand free from suspicion.

In Para 11 of the judgement the apex court had reached a conclusion by analysing all the facts
and held that hat there was abundant evidence upon which the Disciplinary Committee could
find the appellant and Agavane guilty of giving wrong legal advice, but there is considerable
doubt whether upon such evidence the charge of professional misconduct can be supported.
Furthermore, the Supreme Court said that, it is not at all certain that it can be said with strict
accuracy that the appellant was guilty of moral turpitude or that there was any moral
delinquency on his part. The Judgment is correct and clears the law. In arriving at the
conclusion, the reasoning given by the court is fairly consistent with the existing law.
Analyzing the evidence of record, the Court observed that it is difficult to believe that Potdar
and Smt. Dhavale could be made upon to swear an affidavit of the kind unless it was prepared
on their instructions. Further, the Court held that there is nothing unprofessional for an
advocate to draft an affidavit on the instructions of his client. Further, the Court relied on
certain facts to say that the appellant prepared the false affidavit upon the instructions of their
client. However, the concern is whether drawing up of false affidavit even upon the
instruction of party’s amounts to professional misconduct when the advocate knows that the
statements in the affidavit are false. As regards the second charge, the Disciplinary
Committee held the appellant to be guilty of not giving proper legal advice to their client Smt.
Sonubai. It observed that if the gift deed could not be executed because Smt. Sonubai had no
sufficient funds to bear the cost of stamp duty and registration charges payable. The evidence
with regard to the second charge was found to be unconvincing by the Court. The Court
observed that it is quite possible that this old illiterate lady aged about 90 years came to the
Sub-Divisional Magistrate's Court with the purpose of executing a gift deed in favour of her
grand-daughter Smt. Mangala. There is however no real or substantial evidence to connect the
appellant with the affidavit. She stated that she would not be able to identify them because
she had a weak eye-sight and was also hard of hearing for the last 2/3 years and was not able
to see or hear properly.
Finally, the Court found that there was abundant evidence upon which the Disciplinary
Committee could find the appellant was guilty of giving wrong legal advice, but there is
considerable doubt whether upon such evidence the charge of professional misconduct can be
supported. In the instant case, it is not at all certain that it can be said with strict accuracy that
the appellant was guilty of moral turpitude or that there was any moral delinquency on his
part.

CONCLUSION:

The role of the lawyers in the society is of great importance. They being part of the system of
delivering justice holds great reverence and respect in the society. Each individual has a well -
defined code of conduct which needs to be followed by the person living in the society. A
lawyer in discharging his professional assignment has a duty to his client, a duty to his
opponent, a duty to the court, a duty to the society at large and a duty to himself. It needs a
high degree of probity and poise to strike a balance and arrive at the place of righteous stand,
more so, when there are conflicting claims. While discharging duty to the court, a lawyer
should never knowingly be a party to any deception, design or fraud. While placing the law
before the court a lawyer is at liberty to put forth a proposition and canvass the same to the
best of his wits and ability so as to persuade an exposition which would serve the interest of
his client and the society.

The advocate, as an officer of the Court, also has the responsibility to render services of
sound quality. Lapses in services in the nature of absence when the matters are called out, the
filing of incomplete and inaccurate pleadings – many times even illegible and without
personal check and verification, the non-payment of court fees and process fees, the failure to
remove office objections, the failure to take steps to serve the parties are not merely
professional omission. They amount to positive dis-service to the litigants and create
embarrassing situation in the court leading to avoidable unpleasantness and delay in the
disposal of matters, and detrimentally affects the entire judicial system. Furthermore, as the
officers of the court the lawyers are required to uphold the dignity of the judicial office and
maintain a respectful attitude towards the Court. This is because the bar and the bench form a
noble and dynamic partnership geared to the great social goal of administration of justice, and
the mutual respect of the bar and the bench is essential for maintaining cordial relations
between the two. It is the duty of an advocate to uphold the dignity and decorum of the Court
and must not do anything to bring the Court itself into dispute, and ensure that at no point of
time, he oversteps the limits of propriety.

8. Dr. Haniraj Chulani Vs Bar Council of Maharashtra & Goa, (1996) 3,

SCC 342

FACTS
Dr. Haniraj Chulani was a medical practitioner in Mumbai (formerly Bombay) since 1970s and
practiced as colorectal surgeon. During the course of this practice, enrolled and passed out
from a law college and obtained a degree of bachelor of law (LLB) in March 1991. The
appellant insisted that even though he is a medical practitioner he is entitled to simultaneously
carry on the profession as an advocate. The enrollment committee of the respondent state bar
council rejected his request for being enrolled as an advocate simultaneously with his carrying
on his Medical practice as a surgeon. The appellant was ultimately informed on 16 th November
1992 that his application for enrolment as an advocate was rejected. He was also supplied a
copy of the reasons for “refusal for grant of a sanad”. Aggrieved by the same, he approached
the Hon’ble Bombay High Court by way of the writ petition which summarily dismissed his
writ after hearing the petitioner. The petitioner then moved to Hon’ble Supreme Court through
the current writ petition.

ISSUES
1. Whether the respondent State Bar council of Maharashtra & Goa was justified in
refusing enrolment of the appellant as an advocate under the Advocates Act, 1961 as he
is a medical practitioner who does not want to give up his medical practice but wants
simultaneously to practice law.
2. Whether impugned Rule (I) framed by the State Bar Council of Maharashtra & Goa
suffers from the vice of excessive delegation of legislation power and hence is void and
inoperative at law.
3. Whether the said rule is violation of Article 19(1) (g) and is not saved by sub-article (6)
thereof.
4. Whether the aforesaid rule is voilative of Article 14 and 21 of the Constitution of India.

RULES
The Advocates Act, 1961
 Section 28 sub-section (2)
 Section 24 (1) (e)
 Attorney General of India, the Solicitor General of India, the Additional Solicitor
General of India, etc. Section 24
 Rule 47 found in Section VII
 Section 49 (1)

The Constitution of India

 Article 14, 19 and Article 21 of the Constitution of India
 Sub–article (6) of article 19
 Article 19 (1) (g)

Provisions of Untouchability (offences) Act, 1955

ANALYSIS
The court has emphasized on giving reasons for every issue and has not left any stone
unturned. The court is not silent on any issue and has given a brief explanation for every issue.
Here, the principle laid down by the court is that one profession should not be mixed with
another and according to the laws binding in our country one person has the freedom to follow
any one profession to ensure that anyone who enrolls as an advocate on state roll should satisfy
the following requisites to ensure that the chastity, sanctity, and nobleness of the profession is
maintained.
Judges were of the opinion that a person must not jeopardize the interest of the clients with
whom he is dealing. And also not, destabilize his career. Taking two professions in hand is not
only difficult for the person but also for the people involved.
In this case supreme court held that the rule made by the bar council restricting the entry of
person already carried on other profession is not admitted and therefore not violative to the
Article 14, 19(1) (g) and article 21 of the constitution.
The Advocates Act amended and codified the law relating to legal practitioners and provided
for the constitution of an All India Bar. The complete control and jurisdiction regarding
enrollment of advocates and their discipline, which had all along been with the High Courts,
stood transferred to the Bar Council of India and State Bar Councils. The Bar Councils have
become complete autonomous bodies with elected representatives of advocates.
Every State Bar Council has (a) one or more Disciplinary Committees; (b) an Executive
Committee consisting of five members; (c) an Enrollment Committee consisting of three
members; and such other committees as may be found necessary.
The court before taking into consideration the abovementioned question tracked back the
history of the Advocates Act, 1961. In short here, the act was set up to ensure uniformity in the
profession of practice of law in India. It also provided for the establishment of All India Bar
Council, which today is known as the bas council of India, the establishment of state bas
council for each state and the powers to frame rules. Under the same power conferred by
section 28(2) (d) read with section 24(1) (e), the bar council of Maharashtra and Goa framed
the impugned rule which has in current case debarred the petitioner from being registered as an
advocate.
Issue 3 and 4 were clubbed by the court for easy interpretation as all three articles of the
Constitution of India in question are intertwined with each other. It was contended that the
impugned rule denied the petitioner from practicing the profession which he intends or wants
to practice. The same right is not merely a constitutional right but a fundamental right which is
enforceable by law. The counsel for the petitioner also states that the petitioner is qualified as a
citizen of India to have the right under article 19(1) (g) be enforced. The impugned rule was
also challenged on the basis of being violative of article 21 that such a rule did not allow the
petitioner to practice hence not to earn livelihood which is guaranteed by the article in
question.
Learned senior advocate for the appellant contended that such a rule is not found to have been
framed by other State Bar Councils. In our view that would not make any difference. We are
called upon to decide the question whether the impugned rule framed by the respondent-State
Bar Council stands the test of Article 19(1) (9) or not. While deciding that question whether
other State Bar Councils permit by their rules entry of other professional to the legal
profession, would be an aspect which would not be strictly relevant. In our view the impugned
rule does not impose any unreasonable restriction on the right of the professional carrying on
any other avocation and insisting on continuing to carry on such profession, while it prohibits
entry of such a person to the legal profession. If the contention of the learned senior counsel for
the appellant is countenanced and any person professing any other profession is permitted to
join the legal profession having obtained the Degree of Law and having fulfilled the other
requirements of Section 24, then even chartered accountants, engineers and architects would
also legitimately say that during court hours they will practice law and they will simultaneously
carry on their other profession beyond court hours. If such simultaneous practices of
professionals who want to carry on more than one profession at a time are permitted, the
unflinching devotion expected by the legal profession from its members is bound to be
adversely affected. If the peers being chosen representatives of the legal profession constituting
the State Bar Council, in their wisdom, had thought it fit not to permit such entries of dual
practitioners to the legal profession it cannot be said that they have done anything unreasonable
or have framed an arbitrary or unreasonable rule.
So far as the challenge to the impugned rule on the touchstone of Article 14 is concerned it
cannot be said that the rule is unreasonable, arbitrary or capricious from any angle. On the
same ground on which the rule is found not to have fallen foul on the anvil of Article 19(1(g)
as the impugned rule has to be treated as imposing a reasonable restriction on the said
fundamental right it also, therefore, has to be held not to be arbitrary or unreasonable from any
viewpoint. The rule carves out a well defined class of professionals carrying on other
professions and denies to members of this well defined class entry to the legal profession so
long as they insist on carrying on any other profession simultaneously with the legal
profession. The said classification has a reasonable nexus to the object sought to be achieved,
namely, the efficiency of advocates belonging to the legal profession and the better
administration of justice for which the legal profession is a partner with the judiciary. The
challenge mounted on the rule in the light of Article 14, therefore, has to fail.
That leaves out the challenge to the rule in the light of Article 21. It is difficult to appreciate
this challenge. It is no doubt true that right to live includes right to livelihood. However the
appellant is not denied his right to livelihood. He is already a professional carrying on the
profession of a medical practitioner. He wants to have a second string to his bow. He wants
simultaneously to be permitted to practice law with a view to earn additional or more
livelihood. So far as his aforesaid demand is concerned the impugned rule requires that unless
he gives up that other practice and joins wholeheartedly the legal profession he cannot be
permitted to enter the legal profession. That rule cannot be said to be laying down a procedure
not established by law. On the contrary that procedure has been found to be well sustained
under Article 19(1) (g) read with Article 19(6). Once that conclusion is reached the absolute
requirement of Article 21 would be out of the way. Appellant cannot be said to have been
deprived of his right to livelihood by pursuing two professions, contrary to any established
procedure of law. Consequently the impugned rule cannot be faulted on the touchstone of
Articles 21. The third point for determination also, therefore, is decided against the appellant.
Before parting we may mention one submission highlighted by learned senior counsel tor the
appellant. She submitted that under rule-making power of the State Bar Council condition for
enrollment can be imposed. But in the guise of imposing such conditions, the impugned rule
has travelled further and has laid down a disqualification for enrollment which is beyond the
scope of Section 24-A. It is true is submitted by learned senior counsel for the appellant that in
a way the enactment of this rule imposes a disqualification for enrollment. However once it is
found that the rule falls within the parameters of rule-making power as entrusted by the
legislature to the State be, Councils as per Section 24(1) (e) read with Section 28(2) (d) it
cannot be said that such disqualification could not be legitimately imposed by the State Bar
Council. She next submitted that the Medical Council of India has no objection to the
appellant's simultaneously practicing law along with his practicing law along with his
practicing as a surgeon. She also submitted that in foreign countries in some of the States such
simultaneously practice is permitted. In our view all this is beside the point. Whether the
Medical Council of India has no objection to their members' practicing law or whether in
foreign countries under certain circumstances other professionals Are permitted to
simultaneously practice law would not be strictly relevant in deciding the short question with
which we are concerned, namely, whether the State Bar Council had undertaken an
impermissible exercise in enacting the impugned rule restricting entries of other professionals
to the legal profession while they are not prepared to give up their other professions and on the
contrary insist on simultaneously practicing more than one professions. While deciding this
question the wider question whether there can be a better rule than one framed by the State Bar
Council would be beside the point and cannot be of any assistance. Such a contention,
therefore, cannot be of any avail to the learned senior counsel for the appellant.
The aforesaid were the only contentions canvassed on behalf of the appellant and as they fail
the appeal also fails and will stand dismissed. In the facts and circumstances of the case there
will be no order as to costs.
According to me, the court pronounced the right judgment with the proper interpretation of the
laws and policies, a person should not compromise two professions, just for his own interest.

CONCLUSION
The court found it easy to answer the questions raised herewith. With respect to the second
question, the court took a holistic view of the act with respect to the impugned rule. They said
that the authority establishes under the Act namely, the Bar Council of India and the State Bar
Council of the representatives’ state also had the power to regulate upon the education of the
law student. It meant that they were expected to ensure that the student of law who graduate
with a degree in law are expected to be of standards of par excellence as the profession in
question is a noble profession.
On similar grounds, the elected peers on the state bar council who would make rules would
also so want to ensure that anyone who enrolls as an advocate on state roll should satisfy the
following requisites to ensure that the chastity, sanctity, and nobleness of the profession is
maintained. Also, the court was of the opinion that the practicing advocates who are
experienced and qualified are more capable to frame laws rules then the Legislature and so in
the best interest of the advocates and the Legislature, the power to make rules were delegated.
Hence the court decided that this rule did not suffer from the vice of excessive delegation.
With respect to the third and fourth question, the court opined that Article 19(1) (g) had a
clause 19(6) which put reasonable restrictions upon the freedom granted. In the current case,
the petitioner was a doctor and a surgeon and hence although he gave in writing that he would
dedicate time to each profession individually, the court was not convinced upon the same. The
court was of the opinion that practicing law is full – time profession and needs complete
dedication. And the profession of a doctor is the same. If the petition cannot dedicate full –
time attention to one profession he is practicing, it consequently means that he will not have
time for the others as well leading to catastrophic results. Hence the restriction imposed by the
impugned rule was absolutely valid under Article 19 (6).
The Court on the abovementioned grounds did not discuss into details about any contravention
of Article 14 as the rule being in the ambit of Article 19 (6) was not arbitrary. Similarly, since
the petitioner was already earning a livelihood as being a doctor was not deprived of livelihood
and hence the rule was not violation of article 21.
To cumulate, the doctor was disallowed from enrolling as an advocate on the roll and the
impugned rule was decided to be valid as the petition filed was dismissed.
The court in this case took a conservative approach regarding the rules of admission of
advocates on the roll. However, the decision taken in this case was correct to the facts that a
person should never stand on two stones of professional jobs. This not only destabilizes him
but also put in jeopardy the interest of the clients with whom he is dealing. Since this order was
passed by a three judge bench and not a constitutional bench, this order can be challenged in
the near future. But as of today, the decision stands.

9. V. C. Rangadurai Vs D. Gopalan, (AIR 1979, S.C. 281)

FACTS
In the present case V. C. Rangadurai was an advocate, Devasenapathy was a 70-year-old deaf
man, and Smt. D. Kamalammal was also in her seventies. They had given rangadurai two
promissory notes and had also paid the advocate's fees as requested. Despite this, the Advocate
neglected to file the lawsuit on time. The limitation period was over.
After spending a long time roaming about the advocate's office, the old man found that
the advocate had misled him by failing to file cases on time even after collecting the
payments and providing false court dates. He lodged a complaint the with Tamil Nadu
State Bar Council's disciplinary committee, which found the advocate guilty and barred
him for six years following an investigation. But the Bar Council of India upheld the said
findings but reduced the period of suspension to one year.

This Appeal AIR 1979, S.C. 281was filed under Section 38 of the Advocates Act, 1961 and
decided on, on 4 October, 1978, at the Hon'ble Supreme Court of India by, Hon'ble
Justice V. R. Krishna Iyer.

ISSUES
The Main issues that shall be arising out of this observation are

1. Whether appellant has committed professional misconduct or not?

2. Whether the order of the disciplinary committee of the Bar Council of India justified in
holding the appellants guilty of the professional misconduct and punishing him for the
same?
3. Whether the advocate is allowed to undertake free legal aid during the period of his
suspension?

RULES
The present case is in respect to professional misconduct by advocate on Non-performance of
Duty which is s also known as the Dereliction of one’s duty. It may be explained as that
situation wherein an advocate either hands over the brief of the case to some other advocate or
he abandons the client and fails to discharge the required duty. Such a transfer is regarded as
unprofessional. However, it is not a misconduct if the advocate does so after seeking the
client’s consent.

Section 38 of the Advocates Act, 1961 provides Any person aggrieved by an order made by
the disciplinary committee of the Bar Council of India under section 36 or section 37 or the
Attorney-General of India or the Advocate-General of the State concerned, as the case may be,
within sixty days of the date on which the order is communicated to him, prefer an appeal to
the Supreme Court and the Supreme Court may pass such order including an order varying the
punishment awarded by the disciplinary committee of the Bar Council of India thereon as it
deems fit :
PROVIDED - that no order of the disciplinary committee of the State Bar Council of India
shall be varied by the Supreme Court so as to prejudicially affect the person aggrieved without
giving him a reasonable opportunity of being heard.

Section 35(3) of the advocate’s Act, 1961, Act through its various provisions deals with the
charges of professional misconduct of advocates or lawyers in India.
When an advocate is found culpable for professional misconduct, the case shall be referred to
the State Bar Council’s Disciplinary committee. It is then the disciplinary committee’s duty to
fix a date on which the issue must be taken up. It also must issue a show cause notice to both,
the Advocate and the Advocate General of the State. On the fixed date, the committee after
hearing both the parties may take the following actions:

 Either dismiss the complaint against the advocate if it feels that the issue is not too
grave, or direct the filing of proceedings at the same place where the proceeding was
commenced by the State Bar Council
 Reprimand or reprove the advocate for the charges
 As it deems fit to the Committee, suspend, or charge the advocate for an appropriate
period of time
 Withdraw the advocates name from the state roll.

Section 35(4) states that an advocate is suspended from practice under clause (c) of sub-section
(3) of section 35 he shall, during the period of suspension, be debarred from practicing in any
court or before any authority or person in India.

Section 37(2) of the Advocates Act, 1961 states that every such appeal shall be heard by the
disciplinary committee of the Bar Council of India which may pass such order 2[(including an
order varying the punishment awarded by the disciplinary committee of the State Bar Council)]
thereon as it deems fit:

PROVIDED that no order of the disciplinary committee of the State Bar Council shall be
varied by the disciplinary committee of the Bar Council of India so as to prejudicially affect the
person aggrieved without giving him reasonable opportunity of being heard.

Section 30 of the Advocates Act, 1961 talks about Right of advocates to practice

Every advocate whose name is entered in the State roll shall be entitled as of right to practice
throughout the territories to which this Act extends:
 i. in all courts including the Supreme Court;

ii. before any tribunal or person legally authorized to take evidence; and\

iii. before any other authority or person before whom such advocate is by or under any law
for the time being in force entitled to practice.

Article 19 The Constitution of India 1949 here in the present case is discussion in regards to
enabling professional expertise to enjoy a privilege and the Advocates Act confers a monopoly
the goal is not assured income but commitment to the people whose hunger, privation and
hamstrung human rights need the advocacy of the profession to change the existing order into a
Human Tomorrow.

ANALYSIS
“Professional Ethics cannot be contained in a Bar Council rule nor in traditional cant in the
books but in new canons of conscience which will command the members of the calling of
justice to obey rules or morality and utility.”
- Justice Krishna
Iyeri10

Principle laid down by the court

It was clarified by the Apex Court that it is an obligation on the lawyer entrusted with a case
and its brief to follow the principles of professional ethics and consequently protect the client’s
interests. The failure to do so would be a Professional Misconduct.

And it was also observed that relation between a lawyer and his client is highly fiduciary in
nature. The advocate is in the position of trust. And No free legal aid service during the time of
suspension.

Obiter dicta
Krishna Iyer and Desai JJ (Majority)
“Even so, justice has a correctional edge, a socially useful function, especially when the
delinquent is too old to be pardoned and too young to be disbarred. Therefore, a curative, not
cruel punishment has to be designed in the social setting of the legal profession.

10
Bar Council Of Maharashtra vs M. V. Dabholkar 1976 AIR 242, 1976 SCR (2) 48
Punishment for professional misconduct is no exception to this 'social justice' test. In the
present case, therefore, from the punitive angle, the deterrent component persuades us not to
interfere with the suspension from practice reduced 'benignly' at the appellate level to one
year. From the correctional angle, a gesture from the Court may encourage the appellant to
turn a new page. He is not too old to mend his ways. He has suffered a litigative ordeal, but
more importantly he has a career ahead. To give him an opportunity to rehabilitate himself by
changing his ways, resisting temptations and atoning for the serious delinquency, by a more
zealous devotion to people's causes like legal aid to the poor, may be a step in the correctional
direction.”
Justice Per Sen (Partially Dissenting)
“When there is disbarment or suspension from practice, the lawyer must prove, if he can, after
the expiration of a reasonable length of time, that he appreciates the significance of his
dereliction, that he has lived a consistent life of probity and integrity, and that he possesses the
good character necessary to guarantee uprightness and honour in his professional dealings,
and therefore is worthy to be restored. The burden is on the applicant to establish that he is
entitled to resume the privilege of practicing law without restrictions. There is nothing of the
kind in the present case.
when an advocate is suspended from practice under cl (c) of sub-s (3) hereof, he shall, during
the period of suspension be debarred from practising in any court or before any authority or
person in India. If the making of such direction implies the termination of the order of
suspension, on the fulfilment of the conditions laid down no restriction on the right of the
advocate to appear before any Court or authority, which privilege he enjoys under s.30 of the
Act, can be imposed.”
ratio decidendi
The court observed no specific ground for interference with the finding of the Disciplinary
Committee of the Bar Council of India. It is the breach of integrity and lack of probity for a
lawyer to wrongfully withhold money of his client and the appellant has committed a grave
professional misconduct as relation between a lawyer and his client is highly fiduciary in
nature. Disciplinary Committee of the Bar Council of India has already shown leniency and
reduced the suspension from 6 to 1 year. As the court believes that the lawyer is young and the
chances of correction are higher and disbarring him for such a long period of time is not
feasible.
Suspension should be debarred from practising in any court or before any authority or person
in India and and no free legal aid service during the time of suspension.
Decision per incurium
The present case is not per incuriam decision, as no precedents are being sited.

Decision of the Supreme Court

The appellant should during the period of suspension, be debarred from practising in any court
or before any authority or person in India. Further the Appellant was required to pay a sum of
Rs. 2,500/- to the victim of the misconduct and produce a receipt give an undertaking as
directed viz., accepting the suspension from practice for a year and willingness to undertake
work under any legal aid body in Tamil Nadu and convince the Chairman of that Board to
accept his services in any specific place where currently there is an ongoing project, produce a
certificate in this behalf from the Board and agree to do only free legal and for one year as
reasonably directed by the Board and shall not during that period accept any private
engagement.
Comments
The court investigated the matter of professional misconduct in such a way that the judgement
was taken in a humanitarian manner, taking into account the accused's future. The court then
made its decision by thoroughly considering all aspects of the case as well as the parties
involved. The court held that “even so justice has a correctional edge, a socially useful
function, especially if the delinquent is too old to be pardoned and too young to be disbarred.
Therefore, a curative, not cruel punishment has to be delivered in the social setting of the legal
profession”.  It employed a deterrence form of justice, in which the convicted party received
such sentences while still acting as a warning to those who could perform such acts.

CONCLUSION
The Court has held that where advocate finds there would be conflict of interest in taking up a
case of his client, he should not accept the brief of such client, against interest of his earlier
client and observed that relation between a lawyer and his client is highly fiduciary in nature.
The appellant should during the period of suspension, be debarred from practising in any court
or before any authority or person in India. Further the Appellant was required to pay a sum of
Rs. 2,500/- to the victim of the misconduct.
The judgment turned out to be a landmark in cases concerning professional misconduct as it
delivered an effective judgment and but did not jeopardize the future of the accused person.
Legal Profession is highly significant in nature. Law as a profession is regarded as noble and
righteous and thus, it is important that professional ethics are maintained. A lawyer is supposed
to protect people from being punished, it does not suit a figure of such a stature to himself
indulge in such instances of misconduct. In order to train legal professionals, each state's Bar
Councils shall perform regular education services on the dos and don'ts of the practise. It is
equally important to remind the Advocates of their various duty’s relating to the profession.

PRAHLAD SARAN GUPTA V. BAR COUNCIL OF INDIA (1997)

10. PRAHLAD SARAN GUPTA V. BAR COUNCIL OF INDIA (1997), AIR

1997 SC 1338
Facts

Prahlad Saran Gupta (herein after referred as appellant) was enrolled as an advocate with the
Uttar Pradesh Bar Council and had been a practicing advocate at Ghaziabad. There was a case
entitled Atma Ram Nanak Chand vs Sri Ram Contractor in the court of civil judge, Ghaziabad
and the appellant were representing the decree holder. Rajendra Prasad (herein after referred as
complainant) was a partner in Atma Ram Nanak Chand firm. He had made a complaint on the
appellant to the UP-State Bar Council.

The following allegations are made by the complainant against the appellant. They are:

1. Even though the appellant was representing the decree holder, he had colluded with the
judgement debtor and had realized Rs.1600/- from him. Out of which Rs.1500/- was
withheld by him with himself and he did not pay that said amount to the decree holder
for the period of 8 months.
2. In spite of repeated requests for the said amount, the appellant did not handover the
amount to the decree holder and instead deposited the said amount in the court just to
annoy or harass the decree holder. Rs. 100/- which was left out was taken by the
appellant from the judgment debtor as a fee for seeking time from the high court in order
to acquire order of stay in the proceedings of execution.
3. Further the appellant has obtained Rs. 450/- from the judgement debtor as fees and
expenses for engaging a lawyer named Shri V.K.Gupta at Allahabad to get stay order in
the execution proceeding. The appellant also mentioned the judgment debtor that he had
given a letter regarding the same to the Shri V.K.Gupta, advocate at Allahabad.
4. The judgment debtor instead of going to the advocate at Allahabad with a letter, he sent
a reply letter to Shri V.K.Gupta stating the enquiries upon the stay order but to his
surprise the judgment debtor had received a reply to his reply letter stating that no case
of this kind was referred to him from the appellant.
5. The appellant filed a suit against Shri Ramnath Singh on behalf of the complainant's
firm in the Munsif Court with utter recklessness which is ultimately the wrong court.
The firm's new council had taken back the complainant from the wrong court and had to
file in the proper court which is Court of Civil Judge.
6. The appellant had advanced loan to Sundar Lal, and was alleged in indulging in money
lending business at very high rate of interest and misconducting himself as an advocate.
 7. The copy of the complaint was sent to the appellant by the U.P Bar Council for his
explanation but he rejected all the allegations that are made against him in the complaint.
The case was referred by the state bar council to its disciplinary committee but the
committee was unable to complete the said proceedings in the time of 1 year and hence
the matter was sent to Bar Council of India under Section 36B of Advocate's Act, 1961.
8. The disciplinary committee of the Bar Council of India did not find any kind of merit in
the allegation made in the complaint that the appellant was careless in handling the case
of execution but however the committee found that the appellant as guilty of gross
professional misconduct based on its findings on withholding Rs. 1500/- for the period
of 8 months and not returning the said amount to the decree holder and had imposed the
punishment of suspension from practice for a period of 1 year.
9. Aggrieved by the order passed by the disciplinary committee of the Bar Council of
India, the present appeal was filed by the appellant under Section 38 of the Advocates
Act, 1961 before the Supreme Court.

Issues
 Whether the appellant is guilty of gross professional misconduct?
 Whether the findings of the Disciplinary Committee suffered from any legal infirmity?
 Whether the findings of the Disciplinary Committee deserve to be set-aside?
 Whether the punishment ordered by the Disciplinary Committee is justified?
 Whether the Order of the Disciplinary suffers from any error apparent on the face of the
 record?

Rules

Advocates Act, 1961

35. Punishment of advocates for misconduct:

Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any
advocate on its roll has been guilty of professional or other misconduct, it shall refer the case
for disposal to its disciplinary committee.

36B. Disposal of disciplinary proceedings

The disciplinary committee of a State Bar Council shall dispose of the complaint received by it
under section 35 expeditiously and in each case the proceedings shall be concluded within a
period of one year from the date of the receipt of the complaint or the date of initiation of the
proceedings at the instance of the State bar Council, as the case may be, failing which such
proceedings shall stand transferred to the Bar Council of India which may dispose of the same
as if it were a proceeding withdrawn for inquiry under sub-section (2) of section 36.

S.38 - Appeal to the Supreme Court

Any person aggrieved by an order made by the disciplinary committee of the Bar Council of
India under section 36 or section 37 [or the Attorney-General of India or the Advocate-General
of the State concerned, as the case may be,] may within sixty days of the date on which the
order is communicated to him, prefer an appeal to the Supreme Court.

Arguments Advanced:

1. Arguments made on behalf of the Appellant

He submitted that the findings of disciplinary committee are not completely correct and
there are some errors in the findings of the disciplinary committee. Learned Senior Counsel
R.B. Mehrotra, who was representing the appellant, has made certain following
submissions:

1. Appellant had been held guilty by the disciplinary committee for the
professional misconduct which is based on the charge relating to notice under
section 80 of Civil Procedure Code, 1908. It was alleged that the notice was
drafted by the appellant himself but he shouldn't have drafted the said notice
as he was a standing council for the railways.
2. It was submitted that the above-mentioned charge was not filed in the
complainant and was directly put forward before the disciplinary committee of
the state bar council in the application made by the complainant.
3. In addition to this, the disciplinary committee has rejected the request of
examination of hand writing by the expert. The appellant has requested the
disciplinary committee to check whether the handwriting in the notice is same
as that of the handwriting of the appellant but for which the disciplinary
committee has not accepted the said request which is considered as error made
by the disciplinary committee of Bar Council of India. Instead of obtaining an
 expert opinion regarding the handwriting, the committee itself declared that
the handwriting of the appellant and the writing in the notice is similar.

2. Arguments made on behalf of the Respondents

The Respondent before the Disciplinary Committee contended that the endorsement by Shri.
Nanak Chand on the writ for auction stated that his Advocate i.e. the Appellant had accepted
Rs. 1,500/- out of decretal dues from the Judgment-Debtor and told him that the Appellant had
given two months’ time to the Judgment-Debtor. The Respondent placed reliance on the
endorsement of Shri. Nanak Chand to falsify the pleadings of the Appellant.

It was further contended that since the amount belonged to the Decree-Holder, the Appellant
could have easily paid to the Decree-Holder through money order or Cheque and there was no
requirement of receipt from both Decree-Holder and Judgment-Debtor.

It was also argued that it was the duty of the Appellant being a professional to ensure that the
monies collected by the Appellant from the Judgment-Debtor is handed over to the Decree-
Holder. The Appellant wrongly withheld the monies. Further, it was contended the act of the
Appellant of depositing the amount in the court after receipt of a registered letter from the
Complainant was not warranted and amounted to harassment of the Appellant’s own client (i.e.
the Decree-Holder).

The Respondent further contented that the Appellant did not deny the allegation of letter dated
05.04.1978 in his reply and rather during the evidence claimed that the said letter addressed to
Mr. V.K. Gupta Advocate, was given to one Mr. Naresh Chandra Singhal for his case. The
Respondent had filed the copy of affidavit of Mr. Naresh Chandra Singhal stating that he never
received any such letter from the Appellant and also in reply to the said letter the respondent
received a postcard dated 14.04.1978 in reply from the clerk of Shri.V.K. Gupta, Advocate
stating that no such case has been referred to Shri. V.K. Gupta, Advocate by the Appellant.

The Respondent also contented that it was the placing reliance on the aforementioned argument
also justified the delay in submitting the copy of the affidavit of Shri. Naresh Chandra Singhal
since the explanation on the allegation of letter dated 05.04.1978 was given at a very later stage
by the Appellant. Placing reliance on the said photocopy of the affidavit the Respondent before
the Hon’ble Supreme Court contended that the explanation given by the Appellant is
completely fabricated and has no merit.
Analysis
The judgment of the Court has been delivered by Justice S.C. Agarwal on behalf of the division
bench of S.C. Agarwal and G.B. Pattanaik, JJ and is a unanimous decision. In the instant case,
the Hon’ble Supreme Court has dealt with all the issues presented before it.

1. Decision of the Court

The Court therefore, partly allowed the appeal and while holding the appellant guilty of
professional misconduct in wrongfully retaining the amount of Rs. 1,500/- which was kept with
him in connection with the settlement in the execution proceedings till he deposited the said
amount in the Court on May 2, 1978 and in not paying the said amount to the decree holder in
spite of demand, the court imposed the penalty of reprimand on the appellant for the said
misconduct. No order was made as to the costs incurred in the said case.

2. Ratio Decidendi
The Hon'ble Supreme Court has stated that the error has been made by the disciplinary
committee of Bar Council of India in rejecting the request made by the appellant. The court
relied upon the judgement given in the case of State (Delhi Administration) v. Pali Ram 11,
stating that it is not advisable for the judge to make the comparison of hand writing and it is
better to take expert opinion and assistance regarding the comparison of the hand writing.

Therefore, the court held that the appellant was not guilty of serious professional misconduct
just because he drafted the notice under Section. 80 of CPC, 1908 this was served to the
railways. This offence is considered as quasi criminal in nature and hence it has to be proved
beyond reasonable doubt. If the opinion of an expert is considered to compare the handwriting
then it might be proved beyond the reasonable doubt. The disciplinary committee of the Bar
Council of India also passed an order stating that the appellant is guilty of professional
misconduct for the letter sent to the Shri V.K.Gupta. The Supreme Court held that there was no
evidence that Shri Ram (judgement debtor) handed over the letter to V.K. Gupta and advocate
at Allahabad.

Even though the Hon'ble Supreme Court had rejected all the charges that are made against the
appellant, it has found one charge against the appellant established and that was it has found
the appellant guilty of wrongfully withholding Rs. 1500/- with himself, which were due to the
decree holder. It was contended by the appellant that the said amount was placed with him by
both decree holder and judgement debtor with regarding to the settlement that was negotiated

11
1979 (1) SCR 931.
between both the parties but the appellant has refused to pay the appellant the said amount
because it could be paid only if the joint receipt of both the parties was handed over to him.
This has been contended by the disciplinary committee.

The Supreme Court has held that the anticipated settlement between the parties for Rs.1500/-
was deposited with the appellant, but he did not return the amount either to the decree holder
nor the judgement debtor and retained the amount for himself until he deposited the said
amount in the court which is against the professional ethics and conduct especially being a
senior counsel this kind of conduct is not expected.

Therefore, the Supreme Court held that for this ground the appellant was held guilty for gross
professional misconduct and is punished for the same. The punishment of reprimand is
imposed on the appellant for this part of his misconduct to meet the ends of justice.

3. Principle laid down

The principle laid down in the said case can be safely said to be that it is incorrect on the part
of the Advocate community to withhold any amount of money involved in any particular case,
in addition the advocates should be religiously following the rules of the court and should
return any sum of money received by them on behalf of the party they are representing and on
the behalf of the other party if the money has to be returned to them. That aside it is expected
from the legal community when especially the advocate in the said case is a senior advocate to
not commit acts that interfere with the reputation of the legal fraternity at large.

4. Professional Misconduct in the said case

The advocate held money did not give money to the decree holder or to the judgment debtor,
that he was not supposed to or permitted to hold back. Being in the post of Senior Advocate,
he is expected to have been a little prudent and not do such acts which bring down the
reputation of the legal fraternity.

5. Case Comment
The Hon’ble Supreme Court in Harish Chandra Tiwari v. Baiju 12 made a distinction from the
aforementioned decision stating that the facts in the said decision would speak for themselves
and the facts of the case in hand are so glaring that the misconduct of the Appellant in case
hand are of a far dimension. Thus, the court concluded that the decision was not of any help to
the Appellant for mitigation of quantum of the punishment. Similarly, the aforementioned case
was distinguished accordingly in Nirmala J. Jhala v. State of Gujarat 13. In my opinion, Prahlad
12
AIR 2002 SC 548.
13
(2013) 4 SCC 301.
Saran Gupta’s case can be identified as one of the landmarks in the matter of professional
misconduct by an Advocate. In this case, even though the Hon’ble Supreme Court reversed and
set aside many findings of the Disciplinary Committee because of infirmities and lack of
substantiating evidence in proving the misconduct beyond reasonable doubt, still the case shed
light on many such circumstances, acts and omissions which may constitute professional
misconduct by an Advocate and which should not be acted upon by an Advocate. This case
should not be taken as a lenient order as in this case the Hon’ble Supreme Court only
reprimanded the Advocate on the ground that only one allegation was proved against the
Advocate and that too was related to keeping the money of his client as the money was
received by the client, the Court reprimanded the Advocate.

Conclusion

In my opinion, the judgment passed by the Hon'ble Supreme Court is just and in consistent
with the law. The Supreme Court has examined the laws of professional misconduct which is
ultimately related to the professional ethics. Professional ethics are very important for a person
to follow his professional rules and conduct or duties. In the present case the appellant was
found guilty of wrongfully retaining the amount to himself and not returning the said amount to
the decree holder.

This implies that there has been breach of trust by the appellant that his client has trusted upon
him. In the latter case of Harish Chandra Tiwari v. Baiju 14 stated that there are different types
of misconducts envisaged for a legal practitioner but the gravest professional misconduct is
misappropriation of the client's money. Hence, the Court has rightly held that for this ground
the appellant was held guilty for gross professional misconduct and is punished for the same.

The role of a lawyers in a society is not limited to presenting cases before the respective
Court’s but it has also been the history that the lawyers have contributed in freedom
movements, legislating laws for the society, challenging unconstitutionalities, challenging
atrocities and safeguarding rights of individuals, therefore role of an Advocate in the society
holds utmost nobility and with this nobility comes a great responsibility of professional
conduct and ethics to be maintained by an Advocate.

14
AIR 2002 SC 548
When the law provides an Advocate to be the officer of the court, it is also provided the same
officer of the Court to be held liable for professional misconduct and this provision is required
not only to safeguard the public at large but also to uphold the nobility of the profession.