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Ethics Notes

This document discusses the professional ethics and standards that advocates and lawyers are expected to uphold according to the Bar Council of India. It outlines 10 rules regarding an advocate's duties towards the court, which include acting in a dignified manner, respecting the court, not communicating privately with judges, and not appearing in front of relatives who are judges. It also outlines 5 rules regarding an advocate's duties towards clients, such as being bound to accept briefs, not withdrawing service without sufficient cause, not appearing in matters where they are a witness, providing full disclosure to clients, and upholding the client's interests. Overall, the document emphasizes that advocates have a dual responsibility to fearlessly uphold their client's interests while conducting themselves with the

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0% found this document useful (0 votes)
203 views22 pages

Ethics Notes

This document discusses the professional ethics and standards that advocates and lawyers are expected to uphold according to the Bar Council of India. It outlines 10 rules regarding an advocate's duties towards the court, which include acting in a dignified manner, respecting the court, not communicating privately with judges, and not appearing in front of relatives who are judges. It also outlines 5 rules regarding an advocate's duties towards clients, such as being bound to accept briefs, not withdrawing service without sufficient cause, not appearing in matters where they are a witness, providing full disclosure to clients, and upholding the client's interests. Overall, the document emphasizes that advocates have a dual responsibility to fearlessly uphold their client's interests while conducting themselves with the

Uploaded by

shubham shanu
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© © All Rights Reserved
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Ethics

Taken from google + discussed in


class
Said by Sir
Sir’s opinion

Professional Ethics
SEVEN LAMPS

Abraham Lincoln founded his fame and success in the profession on what some called his "
perverse honesty." On his first appear- ance in the Supreme Court of Illinois he addressed the
court as follows : " This is the first case I have ever had in this court, and I have therefore
examined it with great care. As the court will perceive by looking at the abstract of the
record, the only question in the case is one of authority. I have not been able to find any
authority to sustain my side of the case, but I have found several cases directly in point on the
other side. I will now give these authorities to the court, and then submit the
Monday, September 26, 2022
“A man without ethics is a wild beast loosed upon this world”- Albert Camus – random quote
PROFESSIONAL STANDARDS – ADVOCATES AS PER BCI WEBSITE
Advocates have the dual responsibility of upholding the interests of the client fearlessly while
conducting themselves as officers of the court. Accordingly, they are expected to adhere to
the highest standards of probity and honour. An advocate’s conduct should reflect their
privileged position in society which derives from the nobility of this profession. In a nut
shell, if you are an advocate your service to the common man should be compassionate,
moral and lawful.
The rules mentioned in the Chapter II, Part IV of the Bar Council of India Rules on standards
of professional conduct and etiquette shall be adopted as a guide for all advocates in
conducting matters related to law.
RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT
1. Act in a dignified manner
During the presentation of his case and also while acting before a court, an advocate should
act in a dignified manner*. He should at all times conduct himself with self-respect.
However, whenever there is proper ground for serious complaint against a judicial officer, the
advocate has a right and duty to submit his grievance to proper authorities.
*Act in a dignified manner
Action = Thinking + Feeling + Behaving - Think the dignity, feel the dignity, behave and
bring the dignity in yourself.
Ethics
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Said by Sir
Sir’s opinion

Dignity comes from what you are and who you are. It does not come from copying or
emulating someone.
Software must match hardware – be who you are

Act Dignified Self-respect Grievance

2. Respect the court


An advocate should always show respect towards the court. An advocate has to bear in mind
that the dignity and respect maintained towards judicial office is essential for the survival of a
free community.
Become conscious of the space in which you are. Human consists of mind, emotions,
sensations, and body.

Thoughts

Inter- Emotions
personality
Sensation

Body

Intra-

Inter-personality – always exerting outside


3. Not communicate in private
An advocate should not communicate in private to a judge with regard to any matter pending
before the judge or any other judge. An advocate should not influence the decision of a court
in any matter using illegal or improper means such as coercion, bribe etc.
4. Refuse to act in an illegal manner towards the opposition
Ethics
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Said by Sir
Sir’s opinion

An advocate should refuse to act in an illegal or improper manner towards the opposing
counsel or the opposing parties. He shall also use his best efforts to restrain and prevent his
client from acting in any illegal, improper manner or use unfair practices in any mater
towards the judiciary, opposing counsel or the opposing parties.
5. Refuse to represent clients who insist on unfair means
An advocate shall refuse to represent any client who insists on using unfair or improper
means. An advocate shall excise his own judgment in such matters. He shall not blindly
follow the instructions of the client. He shall be dignified in use of his language in
correspondence and during arguments in court. He shall not scandalously damage the
reputation of the parties on false grounds during pleadings. He shall not use unparliamentary
language during arguments in the court.
6. Appear in proper dress code
An advocate should appear in court at all times only in the dress prescribed under the Bar
Council of India Rules and his appearance should always be presentable.
7. Refuse to appear in front of relations
An advocate should not enter appearance, act, plead or practice in any way before a judicial
authority if the sole or any member of the bench is related to the advocate as father,
grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother,
daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law
daughter-in-law or sister-in-law.
Right now the matter regarding the appropriateness of a lawyer appearing in a court in which
his near relative is a judge has gained significance in the context of Fali S. Nariman, a leading
senior advocate of the Supreme Court, continuing to appear in cases before the Supreme
Court in which his son Rohinton F. Nariman has become a Judge since July 2014.
8. Not to wear bands or gowns in public places
An advocate should not wear bands or gowns in public places other than in courts, except on
such ceremonial occasions and at such places as the Bar Council of India or as the court may
prescribe.
9. Not represent establishments of which he is a member
An advocate should not appear in or before any judicial authority, for or against any
establishment if he is a member of the management of the establishment. This rule does not
apply to a member appearing as “amicus curiae” or without a fee on behalf of the Bar
Council, Incorporated Law Society or a Bar Association.
10. Not appear in matters of pecuniary interest
Ethics
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Said by Sir
Sir’s opinion

An advocate should not act or plead in any matter in which he has financial interests. For
instance, he should not act in a bankruptcy petition when he is also a creditor of the bankrupt.
He should also not accept a brief from a company of which he is a Director.
11. Not stand as surety for client
An advocate should not stand as a surety, or certify the soundness of a surety that his client
requires for the purpose of any legal proceedings.
RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT
1. Bound to accept briefs
An advocate is bound to accept any brief in the courts or tribunals or before any other
authority in or before which he proposes to practise. He should levy fees which is at par with
the fees collected by fellow advocates of his standing at the Bar and the nature of the case.
Special circumstances may justify his refusal to accept a particular brief.
Advocate can refuse under special circumstances. Professional misconduct starts only after
accepting the case.
2. Not withdraw from service
An advocate should not ordinarily withdraw from serving a client once he has agreed to serve
them. He can withdraw only if he has a sufficient cause and by giving reasonable and
sufficient notice to the client. Upon withdrawal, he shall refund such part of the fee that has
not accrued to the client.
3. Not appear in matters where he himself is a witness
An advocate should not accept a brief or appear in a case in which he himself is a witness. If
he has a reason to believe that in due course of events he will be a witness, then he should not
continue to appear for the client. He should retire from the case without jeopardising his
client’s interests.
4. Full and frank disclosure to client
An advocate should, at the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosure to his client relating to his connection with
the parties and any interest in or about the controversy as are likely to affect his client’s
judgement in either engaging him or continuing the engagement.
5. Uphold interest of the client
It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and
honourable means. An advocate shall do so without regard to any unpleasant consequences to
himself or any other. He shall defend a person accused of a crime regardless of his personal
Ethics
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opinion as to the guilt of the accused. An advocate should always remember that his loyalty is
to the law, which requires that no man should be punished without adequate evidence.
Following all lamps except wit.
6. Not suppress material or evidence
An advocate appearing for the prosecution of a criminal trial should conduct the proceedings
in a manner that it does not lead to conviction of the innocent. An advocate shall by no means
suppress any material or evidence, which shall prove the innocence of the accused.
7. Not disclose the communications between client and himself
An advocate should not by any means, directly or indirectly, disclose the communications
made by his client to him. He also shall not disclose the advice given by him in the
proceedings. However, he is liable to disclose if it violates Section 126 of the Indian
Evidence Act, 1872.
8. An advocate should not be a party to stir up or instigate litigation.
9. An advocate should not act on the instructions of any person other than his client
or the client’s authorised agent.
10. Not charge depending on success of matters
An advocate should not charge for his services depending on the success of the matter
undertaken. He also shall not charge for his services as a percentage of the amount or
property received after the success of the matter.
11. Not receive interest in actionable claim
An advocate should not trade or agree to receive any share or interest in any actionable claim.
Nothing in this rule shall apply to stock, shares and debentures of government securities, or to
any instruments, which are, for the time being, by law or custom, negotiable or to any
mercantile document of title to goods.
12. Not bid or purchase property arising of legal proceeding
An advocate should not by any means bid for, or purchase, either in his own name or in any
other name, for his own benefit or for the benefit of any other person, any property sold in
any legal proceeding in which he was in any way professionally engaged. However, it does
not prevent an advocate from bidding for or purchasing for his client any property on behalf
of the client provided the Advocate is expressly authorised in writing in this behalf.
13. Not bid or transfer property arising of legal proceeding
An advocate should not by any means bid in court auction or acquire by way of sale, gift,
exchange or any other mode of transfer (either in his own name or in any other name for his
Ethics
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Said by Sir
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own benefit or for the benefit of any other person), any property which is the subject matter
of any suit, appeal or other proceedings in which he is in any way professionally engaged.
14. Not adjust fees against personal liability
An advocate should not adjust fee payable to him by his client against his own personal
liability to the client, which does not arise in the course of his employment as an advocate.
15. An advocate should not misuse or takes advantage of the confidence reposed in him
by his client.
16. Keep proper accounts
An advocate should always keep accounts of the clients’ money entrusted to him. The
accounts should show the amounts received from the client or on his behalf. The account
should show along with the expenses incurred for him and the deductions made on account of
fees with respective dates and all other necessary particulars.
17. Divert money from accounts
An advocate should mention in his accounts whether any monies received by him from the
client are on account of fees or expenses during the course of any proceeding or opinion. He
shall not divert any part of the amounts received for expenses as fees without written
instruction from the client.
18. Intimate the client on amounts
Where any amount is received or given to him on behalf of his client, the advocate must
without any delay intimate the client of the fact of such receipt.
19. Adjust fees after termination of proceedings
An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to
him from the account of the client. The balance in the account can be the amount paid by the
client or an amount that has come in that proceeding. Any amount left after the deduction of
the fees and expenses from the account must be returned to the client.
20. Provide copy of accounts
An advocate must provide the client with the copy of the client’s account maintained by him
on demand, provided that the necessary copying charge is paid.
21. An advocate shall not enter into arrangements whereby funds in his hands are
converted into loans.
22. Not lend money to his client
An advocate shall not lend money to his client for the purpose of any action or legal
proceedings in which he is engaged by such client. An advocate cannot be held guilty for a
breach of this rule, if in the course of a pending suit or proceeding, and without any
Ethics
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Said by Sir
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arrangement with the client in respect of the same, the advocate feels compelled by reason of
the rule of the Court to make a payment to the Court on account of the client for the progress
of the suit or proceeding.
23. Not appear for opposite parties
An advocate who has advised a party in connection with the institution of a suit, appeal or
other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the
opposite party in the same matter.
RULES ON ADVOCATE’S DUTY TO OPPONENTS
1. Not to negotiate directly with opposing party
An advocate shall not in any way communicate or negotiate or call for settlement upon the
subject matter of controversy with any party represented by an advocate except through the
advocate representing the parties.
2. Carry out legitimate promises made
An advocate shall do his best to carry out all legitimate promises made to the opposite party
even though not reduced to writing or enforceable under the rules of the Court.
RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES
1. Not advertise or solicit work
An advocate shall not solicit work or advertise in any manner. He shall not promote himself
by circulars, advertisements, touts, personal communications, interviews other than through
personal relations, furnishing or inspiring newspaper comments or producing his photographs
to be published in connection with cases in which he has been engaged or concerned.
2. Sign-board and Name-plate
An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or
name-plate or stationery should not indicate that he is or has been President or Member of a
Bar Council or of any Association or that he has been associated with any person or
organisation or with any particular cause or matter or that he specialises in any particular type
of work or that he has been a Judge or an Advocate General.
3. Not promote unauthorized practice of law
An advocate shall not permit his professional services or his name to be used for promoting
or starting any unauthorised practice of law.
4. An advocate shall not accept a fee less than the fee, which can be taxed under rules
when the client is able to pay more.
5. Consent of fellow advocate to appear
Ethics
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Said by Sir
Sir’s opinion

An advocate should not appear in any matter where another advocate has filed a vakalt or
memo for the same party. However, the advocate can take the consent of the other advocate
for appearing.
In case, an advocate is not able to present the consent of the advocate who has filed the
matter for the same party, then he should apply to the court for appearance. He shall in such
application mention the reason as to why he could not obtain such consent. He shall appear
only after obtaining the permission of the Court.
Ethics
Taken from google + discussed in
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Said by Sir
Sir’s opinion

AOR
According to Article 145(1) of the Constitution of India, the Hon’ble Supreme Court has the
power to make rules for regulating generally the practice and procedure of the Court, which
includes persons practicing in this Court. As per Chapter IV of the Supreme Court Rules,
2013, only an Advocate on Record (AOR) shall for a party appear, plead and address the
Court in a matter. Although, on instructions from an AOR and with the permission of Court,
an Advocate other than AOR can also address the Court in a matter. Interestingly, not every
advocate practicing in the Supreme Court is an AOR. There are certain set of conditions that
are required to be fulfilled.
Role and duty of Advocate on Record Supreme Court
The roles of an Advocate on Record (AOR) in India are:

 Only an AOR can file a Vakalatnama in the Supreme Court on behalf of the client.
Vakalatnama is a document in writing, appointing a lawyer or pleader to represent the
clients matter in a Court of law.
 No advocate other than an AOR can appear and plead in any matter unless an AOR
instructs him.
 Any notice or order/correspondence by the Supreme Court is sent to the AOR.
 It is necessary to get a certificate issued by an AOR, in order to file a Special leave
Petition under Article 136 of the Constitution of India.
 An AOR is personally liable for the due payment of all fees/charges payable to the
Court.
Qualifications to be an Advocate on Record Supreme Court (AOR) in India
An Advocate can become an AOR, if he/she fulfills the following criteria:
 The Advocate must be enrolled with any state Bar Council;
 The Advocate should not be a designated Senior Advocate;
 The Advocate shall have completed at least 4 years of legal practice on the date of
commencement of his/her 1 year of training under an AOR;
 The Advocate needs to complete one year training under an AOR approved by the
Court;
 After completion of training for 1 year with the AOR, the Advocate has to appear for
an examination conducted by the Supreme Court of India;
 The AOR has to maintain an office in Delhi within a radius of 16 kilometer from the
Court and also give an undertaking to employ a clerk, which is registered clerk of the
said Advocate on record with the Supreme Court, within one month of his/her being
registered as an AOR with the Supreme Court.
 Pay nominal registration fees of Rs. 250 along with the registration form;
Can a Law Firm be registered as an AOR in india?
Ethics
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Yes, a law firm having all partners as AOR can be registered as an Advocate on Record. S.S.
Rana & Co. is one of the very few IP firms in India, registered as Advocate on Record with
the Hon’ble Supreme Court of India, which equips it to represent clients from the lower
courts right up to the Apex Court.
Can Advocates other than AOR work on a case for their client?
Yes, a client can have his briefing Counsel for a case, who has handled the matter at lower
courts. The briefing Counsel can assist the Advocate on Record in undertaking the drafting,
collecting all case documents, certified copies and brief the AOR about the case facts. But
without AOR the briefing lawyer cannot file /defend a case in the Supreme Court and plead
on behalf of his client.
Ethics
Taken from google + discussed in
class
Said by Sir
Sir’s opinion

Combination of fact
and law

Client Cause
Solicit
Rule
Legal
36 Social
(change
you cannot change the ) (Core)
not a commercial
law activity

DABOLKAR CASE – SC – VR KRISHNAIYYER


Bar Council of Maharashtra v. M. V. Dabholkar and Others
1. What is the significant motive while dealing with client? – if it is monetary gain – it’s
the 5 secrets are
wrong.
ant! 2. Do not use force or coerce client.
3. When client complaints, the court will listen to the aggrieved.
4. Complaint against solicitation comes when the client loses the case or when the client
senses that the advocate is not conducting the case properly.
Rule 7 of American Bar Association Rules also prohibit solicitation directly or indirectly
while the significant motive is pecuniary gain and done through force.
5 secrets: disarm, thought empathy and feeling, enquiry (gentle probing), statement, stroking
(positive rapport building)
6 steps: step-back (you become mindful), widen options (giving responsibility to the client,
recognizing client’s potential for choice) When client asks for advice
outside court/office premises
Thank you for approaching me.
Would you mind meeting me in the office
Solicitation reduced when you ask to meet in office
Legal profession is not a trade governed by
Ethics
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“Law is no trade, briefs no merchandise and so the leaven of commercial competition or


procurement should not vulgarise the legal profession.”
Rule 36 (of the Bar Council of India on Standards of Professional Conduct and Etiquette) is
as follows:
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. ." .. Hence in
order to be amendable to disciplinary jurisdiction, the Advocates must have (1) solicited work
(2) from a particular person (3) with respect to a case. Unless all three elements are satisfied,
it cannot be said that an Advocate has acted beyond the standard of professional conduct and
etiquette. It has been stated that the conduct of the Advocate concerned did not conform to
the highest standards of the legal profession. It is not that everybody must conform to the
highest standards of the legal profession. It is enough if an Advocate conforms to the
standards of professional conduct and etiquette as referred to in the rules
1. Do not solicit to such an extend that you are asking the client

When discussing fees


“Don’t worry, we will do our best.”
“Hope you are comfortable” – giving assurance and prediction but not conveying the
outcome.
Prediction is alright but place the words contextually – when you start assuring, solicitation
starts.
Ethics
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Sir’s opinion

THURSDAY, OCTOBER 6, 2022


LC GOEL V. NAWAL KISHORE, CIVIL APPEAL NO. 9982 OF 1983
Came to Delhi to pay INR 2000 fee to the advocate on record.
The case of the complainant is that thereafter he received a letter dated 7-9-1979 from one
Balaram, describing himself as PA to the appellant, whereby the complainant was asked to
come immediately to Delhi with Rs. 2000 which amount was to be deposited as security
deposit in the Court and that on receiving the said letter he came to Delhi on 13-9-1979 and
handed over a sum of Rs. 2000 to the appellant for depositing the same in the Court. The
complainant's case is that after paying the said amount to the appellant he asked for a receipt
but he was informed by the appellant that the receipt would be obtained from the Court after
3 or 4 days. Appellant wrote to him that a theft had been committed at his residence and,
therefore, he was unable to send any bill/receipt at present and that he had to apply for a
duplicate receipt.

 Wrong receipt
 Theft happened
 Landlady might have misplaced
 I’ll pay back the money

Such a security deposit is not necessary in courts – no such receipt has been issued by the
registry of the SC. The Delhi Bar Council – investigated but kept the matter aside – later
referred to the BCI under Section 36-B of the Act – on appeal. BCI suspended the advocate
for 6 months.
Appeal SC – upheld the order of the BCI
Alternate for lawyer – call clerk and enquire why he wrote the said letter asking for 2k and
apologise to client and repay the amount to the client. Instruct clerk to inform about the
payments made by clients.
Ethics
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PD GUPTA V. RAM MOORTHY1


Can you buy a disputed property involved in the case in which you were arguing?
Facts
Advocate bought a property in his father’s name of which the case he was handling as an
advocate – complaint filed.
initiated b BCI/HC on their
The properties in dispute of this case were bought through registered sale deed by the
Advocate, the appellant, and his son-in-law from Vidyawati, his client and then sold the
o believe
property at a much higher price through registered sale deed.
plaint by BCI or HC
The claimant in the property dispute Ram Murti filed complaint against Adv, Gupta for
misconduct at Delhi, the advocates place of practice. The Advocate filed an appeal to the
order of the Disciplinary Committee (DC) of Bar Council of India holding him guilty of
misconduct and sentencing him to suspension of one year under Section 35 of the Act. The
Bare Council of Delhi’s DC was unable to dispose of the complaint within a year of it being
filed under Section 38 of the Act.
The Advocate PD Gupta bought property from his client which was in dispute in an ongoing
case under Section 276 of the Indian Succession Act and in which he was representing his
client. Thus, the first point of misconduct is the fact that the Advocate bought property from a
woman whose right over the property was still in dispute and moreover, the properties where
the subject matter of the dispute. The Advocate bought one property in his name and other
was bought by his son in law, which incidentally was the property for which his father was a
tenant. The Advocate did not bring the sales on record in the suit for disputed properties.
However, VidyaWati’s request for construction on property was sanctioned by the
Municipality even thought she was yet to be granted declaration of title. Further, the
Appellant and his son-in-law paid the consideration quite flexibly through the year on the sale
deed which made no mention civil suits on the property sold.
The BCI made observed that Advocates can exert pressure on their clients and have started to
make bargains on success or contracting with their clients. These activities are not barred but
buying a doubtful and disputed property after being aware of the law himself is quite out of
the ordinary. Thus, the decision to hold the Appellant liable for misconduct and subsequent
suspension.
Issues

 Whether the act of buying the property in dispute of the client, misconduct on the part
of the Advocate?
 Whether the sentence of one year of suspension disproportionate to his guilt?
Legal Provisions Applied

 Section 35, Advocate Act, 1961: Punishment of advocates for misconduct,


1
https://www.lawjure.com/ethical-conduct-and-advocacy-case-analysis-of-p-d-gupta-v-ram-murti/
Ethics
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 Section 36B, Advocate Act, 1961: Disposal of disciplinary proceedings


 Section 38, Advocate Act, 1961: Appeal to the Supreme Court
 Section 276, Indian Succession Act, 1925: Petition to Probate
Duty of advocate to bring facts on paper – if he himself becomes a party – there is a chance
that he will try to avoid bringing all the facts before the court.
Price of disputed property will be low – and lawyer can delay to meet his needs.
Makes client more vulnerable – adding to her agony.
When junior stamps, be polite but firm
SC Held
The Supreme Court observed that the contention of the Appellant had no basis. The
contention of charges not being clear and not being in possession of the property are not
valid. The charges are simple and the fact that he does not own the property does not alleviate
the misconduct of buying the disputed property in the first place. The Court stated “A lawyer
owes duty to be fair not only to his client but to the court as well as to the opposite party in
the conduct of the case. Administration of Justice is stream which has to be kept pure and
clean. It has to be kept unpolluted. Administration of Justice is not something which concern
the Bench only. It concerns the Bar as well. Bar is the principal ground for recruiting Judges.
No one should be able to raise a finger about the conduct of a lawyer.”
The act of buying the disputed property in the present case raises serious questions on his
professional conduct and bought disrepute to the administration of justice. Thus, the decision
of the BCI was accepted and reiterated.
Reference Of Other Relevant Precedent
The Supreme Court in Noratanmal Chaurasia v. M.R. Murli, held that “misconduct is not
defined under the Advocates Act, 1966 but misconduct envisages breach of discipline,
although it would not be possible to lay down exhaustively as to what would constitute
misconduct and indiscipline which, however, is wide enough to include wrongful omission or
commission, whether done or omitted to be done intentionally or unintentionally”.
The DC while adjudicating on Prof. Krishanraj v. Vishwanth D. Mukashikar, the fact that the
Advocate in disgrace had made delay in filing the suit and even the interim application
causing consequent loss to the client, held him guilty of misconduct.
A landmark case in matters of advocate misconduct is the Suo Moto Enquiry v. Nand Lal
Balwani, wherein the Respondent Advocate hurled shoes and shouted slogans in the Supreme
Court of India, which lead to both contempt and misconduct proceedings against him. The
Supreme Court found him to be guilty of contempt and the BCI found him guilty of
misconduct and removed him from the roll.
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Sambhu Ram Yadav v. Hanuman Das Khatry, an Advocate of BCI of Rajasthan who was
appearing in a suit before a particular judge, stated that the judge asked for bribe and
attempted to influence the judge to give a favourable order. The DC declared him “unfit to be
a lawyer”. The SC observed that the legal profession is not a trade or business. The advocates
have a duty to sustain the integrity of the profession and to discourage corruption in
pursuance that justice is secured.
Smt. Sudesh Rani v. Munish Chandra Goel, the respondent advocate filed suits for the
eviction of the tenants by suppressing the fact that an earlier compromise decree was passed
wherein the tenants were declared as owners of the said property. The respondent advocate
suppressed the material facts since his wife and he were involved in the compromise of the
suits. The advocate was found guilty of misconduct and suspended for two years.
Conclusion
The case in analysis relates to at its core the duty of the advocate to not indulge in subject
matters of dispute for personal gain. A lawyer is a man with great knowledge of the law and
should understand which acts of his could be detrimental and increase complexity of the suits
and disputes at hand.
Thus, it is pertinent that a lawyer should always keep in mind the guidelines of the BCI and
also act in an honourable manner while carrying out his profession. The profession obliges
the advocate to uphold rule of law and support smooth functioning of public justice system. It
is integral to have integrity in abundance and nothing should be done that could erode his
credibility.
In all professional roles, an advocate should be meticulous and should be in line with the
requirements of the law. Any violation of the principles of professional ethics is as
unfortunate but more importantly unacceptable.

Refer notes
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Tuesday, October 11, 2022


PROFESSIONAL MISCONDUCT DEFINITION CASE – NORATANMAL CHOURARIA VS. M.R.
MURLI & ANR.
Sections 35 and 38 – Advocates – Professional misconduct – Imposition of punishment –
When proper and justified – Scope of the jurisdiction of the Supreme Court in appeals under
section 38 – Disputes between landlord (appellant) and tenant (respondent) – Tenant happens
to be an Advocate – Tenant initiating rent control proceedings against the landlord – On
various occasions when appellant visited the court in connection with the proceedings,
respondent misbehaving with the appellant and assaulting him and also threatening to kill –
Appellant lodging a complaint with the Bar Council of Tamil Nadu – Said Council initiating
proceedings but ultimately transferring the proceedings to the Disciplinary Committee of the
Bar Council on India – Noticing that the respondent had not been appearing as Advocate in
the rent control proceedings but only participating as a party in person and no criminal
proceedings having been initiated against the respondent for the alleged criminal acts and
there being no documentary evidence to substantiate the complaint, Bar Council of India
refusing to enquire into the complaint.
Appellant therefore approaching the Supreme Court on appeal. Dismissing the appeal, held
that though the court enjoys extensive and wide jurisdiction under section 38, the opinion of
the Bar Council shall carry great weight . The Disciplinary Committee had considered the
conduct of the appellant in order to judge as to whether the acts on the part of the respondents
amounted to misconduct. There was no reasons as to why the appellant did not make any
complaint to the State Bar Council immediately after the alleged incidents. Findings of the
Bar Council not being irrational no case made out for any interference.
7. Misconduct has not been defined in the Advocates Act, 1961. Misconduct, inter alia,
envisages breach of discipline, although it would not be possible to lay down exhaustively as
to what would constitute conduct and indiscipline, which, however, is wide enough to include
wrongful omission or commission whether done or omitted to be done intentionally or
unintentionally. It means, “improper behaviour intentional wrong doing or deliberate
violation of a rule of standard or behaviour”:
“5. Misconduct has been defined in Black’s Law Dictionary, sixth Edition at Page 999 thus:-
“A Transgression of some established and definite rule of action, a forbidden act, a
dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour,
it synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety,
mismanagement, offence, but not negligence or carelessness”.
Misconduct in offence has been defined as :-

“Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in
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character. Term embraces acts which the office holder had no right to perform, acts
performed improperly and failure to act in the face of an affirmative duty to act”.

11. P. Ramanath Aiyar’s Law Lexicon, Reprint Edition 1987 at Page 821 defines
‘misconduct thus:-
“The term misconduct implies a wrongful intention, and not a mere error of judgment,
Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word
misconduct is a relative term, and has to be construed with reference to the subject-matter and
the context wherein the term occurs, having regard to the scope of the Act or statute which is
being construed. Misconduct literally means wrong conduct or improper conduct. In usual
parlance, misconduct means a transgression of some established and definite rule of action,
where no discretion is left, except what necessity may demand and carelessness, negligence
and unskilfulness are transgressions of some established, but indefinite, rule of action, where
some discretion is necessarily left to the actor. Misconduct is a violation of definite law;
carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act;
carelessness, a forbidden quality of an act and is necessarily indefinite. Misconduct in office
may be defined as unlawful behaviour or neglect by a public official, by which the right of
party have been affected.”
Court observed:
1) Behaviour as well as conduct: psychological and physical
2) Discretion to define exists but cannot let it loose – necessity demands that you act in a
particular way and violation is misconduct – necessity determined by circumstances
3) It is the transgression of some established and definite rule of action which can be
intentional/non-intentional – defined/undefined – committed/omitted.
4) Carelessness, mere error of judgment and negligence per se – not misconduct
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NARAIN PANDEY VS. PANNALAL PANDEY, CIVIL APPEAL NO. 6363 OF 2004
Section 35 – Misconduct – Respondent allegedly forging the signatures and fabricating the
documents including settlement documents – Also entering into compromise by forging
signature and fraudulently procuring orders from consolidation Court – Allegation fully
proved by witnesses before Disciplinary Committee (DC) of Bar Council UP (BC UP) – DC
taking into account his previous misconduct debarring him from practice for seven years on
28.05.2002 – On appeal DC of Bar Council of India (BCI) not agreeing with the findings of
BC UP that he forged signatures and imposing fine of Rs. 1,000/- for negligence – BCI
accepting the oral submission of advocate which is not backed by any documentary evidence
– No evidence in rebuttal – Complainant and respondent related and having dispute. Held,
merely because they are having a dispute is not a ground to reverse the well reasoned order of
BC UP. Reliance can not be put on oral submissions without any documentary evidence.
BCI’s order quashed. Order of BCUP restored.
Misconduct in legal profession – Expectation from a member of this profession –
Punishment, if misconduct is proved, discussed. Bar Council of Maharashtra’s, M.
Veerabhadra Rao’s and Dhanraj Singh Choudhary’s [JT 2011 (14) SC 115] cases referred
and discussed.
Misconduct – Advocate forging signatures and filing vakalatnama and fictitious compromise
without authority – Charges grave – BC UP debarring him from practice for seven years –
Previously also he was reprimanded for misconduct. Held he is to be suspended from practice
for three years.
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LIST OF CASES
1. V. C. Rangadurai Vs D. Gopalan It is not in accordance with professional etiquettefor
And Ors On 4 October, 1978 one advocate to hand over his brief to another to
takehis place at a hearing (either for the whole
SECTION 35(3) or1056part of the hearing), and conduct the case as if
the latterhad himself been briefed, unless the client
consents to thiscourse being taken. Counsel's
paramount duty is to theclient; accordingly where
he forms an opinion that aconflict of interest
exists, his duty is to advise theclient that he should
engage some other lawyer. It isunprofessional to
represent conflicting interests, except byexpress
consent given by all concerned after a full
disclosure of the facts

The appellant was found guilty of gross


professional misconduct by the Disciplinary
Committee II of the State BarCouncil, Tamil
Nadu and was therefore, debarred frompractice
as an Advocate for a period of six years.
Inappeal, the Bar Council of India upheld the
said findingsbut reduced the period of suspension
to one year
2. Devendra Bhai Shankar Mehta Vs Civil - fraud - Sections 35, 36 and 43 of Advocate Act,
Rameshchandra Vithaldas Sheth 1961 - advocate and his racket fraudulently took
money from complainants - disciplinary committee of
Bar Council of India imposed punishment on advocate

An advocate indulging in such nefarious activities is


not entitled to continue as a member of legal
profession which is based on the implicit faith and
confidence in the mind of the client. From a perusal of
the entire evidence placed on record and read before
us, leads us to the irresistible conclusion that the
appellant was not only having full knowledge about
the racket but was also an active member in the
complicity of such racket and was getting substantial
financial advantage.

3. M. Veerabhadra Rao Vs Tek Chand Constitution - professional misconduct - Article 38 of


On 18 October, 1984 Bar Council Of Advocates Act, 1961 - vendee got sale deed registered
on strength of forged document which was attested on
affidavits by appellant who was practicing advocate
and authorized to attest - complaint against advocate -
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State Bar Council referred complaint to Disciplinary


Committee (DC) - DC concluded that only because of
alleged misconduct of appellant income tax clearance
certificate obtained which helped vendee in getting
sale deed registered - appeal preferred - Bar Council
of India affirmed finding of DC - Supreme Court
approached under Section 38 - official heads of Bar
are distressed if lawyers 'stoops to conquer' by resort
to soliciting touting and other corrupt practices - such
act of appellant was improper and comes within
mischief of professional misconduct - looking to
gravity of misconduct and keeping in view motto
punishment must be commensurate with gravity of
misconduct - appellant directed to be suspended for
practice for period of five years - appeal dismissed.

4. Chandra Shekhar Soni Vs Bar an advocate who was representing one party in a
Council Of Rajasthan And Ors criminal case, switched sides and accepted the brief of
the other party and began representing the other party.
It was held by the Supreme Court that it is against the
ethics of the legal profession and not in accordance
with the professional etiquette of this profession to
represent opposing party while retained by one party.
As soon as an advocate accepts the brief of his client
he is bound to perform his duties keeping in mind the
professional ethics and these ethics are expected both
by the court as well as the client. Client- Lawyer
relationship is a relationship based on trust and a
lawyer breaking that trust or performs his duty
unethically shall be punished. So, in this case advocate
was found guilty by Supreme Court and was
suspended to practice for period of one year.

5. L.D. Jaisinghani Vs Naraindas N. Contempt of Court - Misconduct - Section 36B of


Punjabi On 27 November, 1975  Advocates Act, 1961 - Complainant had file a Petition
for Amendment of plaint so that he may figure as sole
Plaintiff and also apply to Court for payment of rents -
Hence, this Appeal - Whether, both sides had come
out with full and true facts - Held, Appellant had been
most unwise in not sending a Registered letter in reply
to registered notice received by Complainant - Thus,
complainant on telephone and sent a letter which a
copy had been rejected by Committee on ground that
Advocate's conduct did not appear above board -
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However, Committee had been unduly swayed by


unsavoury background of Appellant - So, it could not
see its way to gave Appellant even benefit of doubt -
Appeal allowed.

6. P.D. Gupta V. Ram Murti And Anr.


7. John D’souza V. Edward Ani
8. Lc Goyal V Nawal Kishore
9. V.P. Kumaravelu Vs The Bar
Council Of India
10. Hikmat Ali Khan Vs Ishwar Prasad
11. Prahlad Saran Gupta V Bar Council
Of India
12. Pandurang Dattatraya Khandekar Vs
Bar Council Of Maharashtra
13. D.S. Dalal Vs State Bank Of India
And Ors 
14. Noratanman Courasia V. M. R.
Murali
15. Sambhu Ram Yadav V. Hanuman
Das Khatry
16. N.G. Dastane V. Shrikant S. Shind
17. Bar Council Of India Vs A.K. Balaji
18. Lawyers Collective V. Bar Council
Of India And Others
19. Vp Kumaravelu Vs Bci
20. Harish Chandra Tiwari Vs. Baiju
21. Narain Pandey Vs. Pannalal Pandey 
22. An Advocate Vs B.B. Haradara 
23. Bar Council Of Andhra Pradesh Vs
Kurapati Satyanarayana 
24. Ashwini Kumar Upadhyay Vs Union
Of India 
25. Indira Jaising Vs Supreme Court Of
India 

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