CHANAKYA NATIONAL LAW UNIVERSITY

Professional Ethics & Professional Accounting

System

TOPIC: Professional Misconduct

Submitted to– Submitted by-

Dr. MEETA MOHINI AMIT DIPANKAR

(Faculty in charge) Roll No. –

20181609
9th Semester
ACKNOWLEDGEMENT

Before we get into thick of things, it gives me great pleasure to acknowledge with deep
sense of gratitude and appreciation to all those people who gave me their unending
support and cooperation while completing this project work. They all rendered their
valuable time and services in making this project a success.

Firstly, I would like to thank the all mighty God for giving blessing and support in
helping me to complete this project.

I gratefully acknowledge Dr. MEETA MOHINI, Faculty in-charge (Professional Ethics

& Professional Accounting System) CNLU, Patna, for giving me the opportunity to
work on the project. His encouragement and support throughout has helped me in
successfully completing the project.

I am even thankful to our institution, Chanakya National Law University, Patna to give
me such an interesting project to work on.

At last, but not the least, I express my sincere thanks to my parents for their generous
support and cooperation throughout the project.

AMIT DIPANKAR
AIMS AND OBJECTIVES

 To study and understand the professional conduct to be observed by

advocates.
 To analyze the provisions related to code of conduct and ethical
conduct.
 To study the different kinds of misconduct.

RESEARCH METHODOLOGY

The doctrinal method has been followed. Books and cases have been
referred to.
Table of Contents
1. Introduction

Meaning and Definition

Meaning of Professional misconduct and other misconduct

2. Rama Talkies & Ors vs Government Of A.P. & Anr on 1 November, 2002

3. Provisions of Advocates Act, 1961

The Code of Conduct Prescribed For Advocate

4. PROFESSIONAL MISCONDUCT

Contempt of Court

Misbehavior

Strike

Solicitation of Professional work

Breach of Trust By Misappropriating The Asset Of Client

5. Conclusion

BIBLIOGRAPHY
 Introduction

A lawyer’s profession is meant to be a divine or sacred profession by all means. In every

profession, there are certain professional ethics that need to be followed by every person who
is into such a profession. But there is the fact that professional misconduct is a common aspect,
not only in other professions but also in advocacy also. In simple terms, it means certain acts
done by the persons which seem to be unfitfor the profession as well as which are against certain
ethics in this field. The term hasbeen clearly defined in Black’s Dictionary as, the transgression
of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful
behavior, improper or wrong behavior. Its synonyms are a misdemeanor, impropriety,
mismanagement, offense, but not negligence or carelessness.1 From the definition, it is now
clear that the act of professional misconduct is done purely with an intention of getting unlawful
gains. The Advocates Act, 1961 and the Indian Bar Council play a vital role in providing rules
and guidelines regarding the working, code of conduct and such other matters concerning
lawyers and advocates in India.
The attributes of a profession are:

1. Existence of a body of specialized knowledge or techniques.

2. Formalized method of acquiring training and experience.

3. Establishment of a representative organization with professionalism as itsgoal.

1
https://blog.ipleaders.in/professional-misconduct-advocates-act-1961/
 4. Formation of ethical codes for the guidance of conduct.

5. Charging of fees based on services but with due regards to the priority ofservice
over the desire of monetary rewards.2
6. Advocacy is a noble profession and an advocate is the most accountable, privileged and
erudite person of the society and his act are role model for the society, which are
necessary to be regulated. Professional misconduct is the behavior outside the
bounds of what is considered acceptable or worthy of its membership by the governing
body of a profession. Professional misconduct refers to disgraceful or dishonorable
conduct not befitting an advocate. Chapter V of the Advocate Act, 1961, deals with the
conduct of Advocates. It describes provisions relating to punishment for professional
and other misconducts. Section 35(1) of the Advocate Act, 1961, says, 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 it disciplinary committee. Generally legal profession is not a trade or
business, it’s a gracious, noble, and decontaminated profession of the society. Members
belonging to this profession should not encourage deceitfulness and corruption, but they
have to strive to secure justice to their clients. The credibility and reputation of the
profession depends upon the manner in which themembers of the profession conduct
themselves. It’s a symbol of healthy relationship between Bar and Bench.3

Meaning and Definition

Misconduct is the antonyms of conduct. Conduct means behavior with good manners and
treatment shown towards others Misconduct represents misbehavior. Misconductas explained
in the Dictionary is 'improper conduct'. The term 'misconduct' has been defined in Black's
Dictionary as 'a transgression of some established and defined rule of action, a forbidden act ,
a dereliction of duty, unlawful behavior, willful in character, improper or wrong behavior'. Its
synonyms are misdemeanor, impropriety, mismanagement, offence, but not negligence or

2
Ethics and Conduct available at https://www.academia.edu/11790162/Professional_Ethics_for_Lawyers
3
ibid
 carelessness. In State of Panjab V. Ram Singh4 the Supreme Court held that the term may
involve moral turpitude. An advocate is bound to conduct himself in a manner befitting the high
and honorable legal profession. The legal profession is a noble profession having high
traditions. An advocate is expected to uphold those traditions. He must comply with the conduct
of professional ethics and etiquette as laid down by bar council of India.

Meaning of Professional misconduct and other misconduct –

Section 355 makes it clear that an advocate may be punished for professional misconduct or
other misconduct. The terms misconduct and professional misconduct are not defined In
Section 35 or any other provisions of the Advocate Act, 1961. The expression 'professional or
other misconduct' are mentioned in section 10 of Bar councils Act, 1926. By using those words
it was made clear that the authority might take action in all cases of misconduct, whether in
professional or other capacity.

Every misconduct may not be Professional or other misconduct. Only unsatisfactory

professional conduct of a substantial, recurring or continuing nature is considered as
professional or other misconduct. Thus a guilty or fraudulent grossly improper conduct of an
advocate in the discharge of his professional duty is considered as professional misconduct.
Professional misconduct is conduct occurring otherwise than in connection with the practice of
law that would justify a finding that its preparation is not of good fame and character or is not a
fit and proper person to remain on the Roll of Legal Practitioners.

4
AIR 1992, SC 2188
5
Advocate Act, 1961
Rama Talkies & Ors vs Government Of A.P. & Anr on 1 November, 2002

Having failed in their endeavour to question successfully the validity of the Andhra Pradesh
Entertainments Tax (Second Amendment) Act, 1988 inserting Explanation-II in Section 4 of the
Andhra Pradesh Entertainments Tax Act, 1939 before the High Court of Judicature Andhra Pradesh
at Hyderabad, the appellants are before us in these appeals by way of special leave. The main
contention urged on behalf of the appellants by Ms. K. Amareshwari, learned senior counsel, is that
the respondent-State could not have collected entertainment tax from the appellants at a rate which
is applicable to cinema theatres situated in the area administered by a Municipality because the
State Government under the Municipalities Act had not issued any notification equating the
respective areas in which appellants' cinema theatres are situated, with a Municipality. It is the
contention of the appellants that in the absence of any such Gazetted Notification the State has no
authority to collect the entertainment tax at a higher rate. This argument of the appellants was
rejected by the High Court on the ground that this was a question which was available to the
appellants to be urged in an earlier writ petition filed by them and that having not been done, the
appellants are barred by the principle of constructive res judicata from raising such a contention in
the subsequent writ petitions.
In this appeal, we need not go to that question because it is pointed out by Mr. G Prabhakar, learned
counsel for the State of Andhra Pradesh, that in fact such a Notification as stated by the appellants,
was issued by the State Government as could be seen from G.O.Ms.274, M.A. Health and Municipal
Administration Department, dated 29th March, 1971 which was in regard to Kothagudem notified
area. Learned counsel for the State urges similar notifications are there in regard to other areas
involved in these appeals. A perusal of this notification shows that the State Government has,
exercising the power under Section 389-A of the Andhra Pradesh Municipalities Act, 1965, issued
the above notification wherein Kothagudem and other areas found in the different notifications have
been equated to that of a first grade municipality in the State, and the said notification has been
Gazetted in the Gazette Extraordinary issued by the Andhra Pradesh Government published on
31.3.1971. In view of the above factual position, we are unable to accept the argument addressed on
behalf of the appellants.
We also find no merit in the next argument addressed on behalf of the appellants in regard to the
retrospective effect of the levy. We find in these appeals there is no challenge to the constitutionality
of the levy. The limited challenge is based on the fact that without proper notification under the
municipality's Act, the levy could not be imposed. That argument of want of notification, we have
rejected on facts if that be so levy being a valid levy is liable to be collected from the date of its
original imposition.
In the said view of the matter, we find no merit in these appeals and the same are dismissed. No
costs.
 Provisions of Advocates Act, 1961

The provisions of Section 356 of the Advocates Act deal with professional misconduct of
lawyers and advocates in India, which read as:

A person is found guilty of professional misconduct; it shall refer the case to a disciplinary
committee, shall fix a date of hearing and issue a show cause notice to theAdvocate and the
Advocate General of the State. The disciplinary committee of the State Bar Council, after being
heard of both the parties, may:

 Dismiss the complaint, or where the proceedings were initiated at the instanceof the
State Bar Council, directs that proceedings be filed;
 Reprimand the advocate;

 Suspend the advocate from practice for such a period as it deems fit;

 Remove the name of an advocate from the state roll of advocates.

Misconduct is of infinite variety; this expression must be understood in a broad meaning, such
that it extends the meaning under natural law, and there is no justification for restricting their
natural meaning. Section 49 of the Advocate Act empowers the Bar Council of India to frame
 rules and standards of professional misconduct. Under the Act, no person has a right to make
advertisement or soliciting; it is against advocate’s code of ethics. He is also not entitled to any
advertisement through circulars, personal communications or interviews, he is not entitled to
demand fees for training and to use name/service for unauthorized purposes.
The advocates act 1961 is a comprehensive legislation that regulates the legal practiceand legal education
in India. It envisages for the establishment of Bar Council of Indiaand State Bar Councils with various
disciplinary committees to deal with misconduct of the advocates. It also provides for the provisions relating
to the admission and enrolment of advocates and advocates right to practice. Chapter V containing sections
35 to 44 deals with the conduct of the advocates. It provides for punishment for

advocates for professional and other misconduct and disciplinary powers of the Bar council of
India. In order to attract the application of section 35 of the advocates act the misconduct need
not be professional misconduct alone. The expression used in thesection is Professional or other
misconduct. So even conduct unconnected with the profession may account to a misconduct
as for example, conviction for a crime,though the crime was not commited in the professional
capacity. At the same time it isto be noted that a mere conviction is not sufficient to find an
advocate guilty of misconduct, the court must look in to the nature of the act on which the
conviction is based to decide whether the advocate is or is not an unfit person to be removed
fromor to be allowed to remain in the profession.

Misconduct is of infinite variety, the expression professional or other misconduct must be

understood in their plain and natural meaning and there is no justification in restricting their
natural meaning. The term misconduct usually implies an act done willfully with a wrong
intention and as applied to professional people it includes unprofessional acts even though such
acts are not inherently wrongful.

The Code of Conduct Prescribed For Advocate

Section 49 of the advocates’ act 1961 empowers the Bar Council of India to frame rules
regulating standards of professional conduct. Accordingly various duties are prescribed for the
advocates some of them are highlighted below.

No advertising or soliciting work, it is against an advocate’s code of ethics to solicit or

advertise work and amounts to misconduct on the part of the advocate. Both direct and indirect
advertising is prohibited. An advocate may not advertise his services through circulars,
advertisements, touts, personal communication or interviews not warranted by personal
relations. Similarly, the following forms of indirect advertising are prohibited:

(i) by issuing circulars or election manifestos by a lawyer with his name, professionand
address printed on the manifestos, thereby appealing to the members of the

profession practising in the lower courts who are in a position to recommend clients to counsel
practising in the HC.

(ii) canvassing for votes by touring in the province or sending out his clerk or agents to the
various districts, which must necessarily mean directly approaching advocates practicing in
subordinate courts. Further, the signboard or nameplate displayed by an advocate should be of
reasonable size. It should not refer to details of an affiliated by the advocate i.e. that he is or
has been president or member of a bar council or of any association, or he has been a Judge or
an Advocate-General, or that he specializes in aparticular kind of work, or that he is or was
associated with any person or organization or with any particular cause or matter.

Not to demand fees for training; An advocate is restrained from demanding any fees for
imparting training to enable any person to qualify for enrolment.

Not use name/services for unauthorized practice; An advocate may not allow his professional
services or his name to be associated with, or be used for any unauthorized practice of law by
any lay agency.

Not to enter appearance without consent of the advocate already engaged: an advocate is
prohibited from entering appearance in a case where there is already anotheradvocate engaged
for a party except with the consent of such advocate. However if such consent is not produced,
the advocate must state the reasons for not producing it,and may appear subsequently, only with
the permission of the court.

Duty to opposite party:- While conducting a case, a lawyer has a duty to be fair not only to his
client but also to the court, and to the opposite party. An advocate for a party must communicate
or negotiate with the other parties regarding the subject matter of controversy, only through the
opposite party’s advocate. If an advocate has made any legitimate promises to the opposite
party, he should fulfill the same, even if the promise was not reduced to writing or enforceable
under the rules of the court.
Duties of an advocate towards his client: The relationship between a lawyer and a client is
highly fiduciary and it is the duty of an advocate fearlessly to uphold the interests of the
client by fair and honourable means without regard to any unpleasant consequences to himself
or any other person.

The above are only few important code of conduct to be observed by an advocate practicing in
India. According to Justice Abbot Parry, there are seven importantqualities that a lawyer should
possess, he call these qualities as seven lamps of advocacy, they are; Honesty, Courage,
Industry, Wit, eloquence, Judgement, and Fellowship. Apart from that the panchsheel of the
bar are Honesty, Industry, Justice, Service and Philisophy and Panchsheel of the bench
according to Sri ram Kishore Rande are, Impartiality, Independence, Integrity and Industry,
Judicial activism and Prayer.
 PROFESSIONAL MISCONDUCT

Contempt of Court
 In the recent case of B. M. Verma v. Uttrakhand Regulatory Commission6 court notedthat, it
was given the wide powers available with a Court exercising contempt jurisdiction. In the case
of Court of Its Own Motion v. State7 dealing with thecontempt proceedings involving two
senior advocates, observed that ‘given the wide powers available with a Court exercising
contempt jurisdiction, it cannot afford to be hypersensitive and therefore, a trivial misdemeanor
would not warrant contempt action. Circumspection is all the more necessary because as
observed by the SC in SCBar Association v. Union of India8 the Court is in effect the jury, the
judge and the hangman; while in M.R. Parashar H. L. Sehgal9 it was observed that the Court is
alsoa prosecutor Anil Kumar Sarkar v. Hirak Ghosh, reiterates this.
In the most controversial and leading case of R.K. Ananad v. Registrar of Delhi High Court,
On 30th May, 2007 a TV news channel NDTV carried a report relating to a sting operation.
The report concerned itself with the role of a defence lawyer and the Special Public Prosecutor
in an ongoing Sessions trial in what is commonly called the BMW case. On 31st May, 2007 a
Division Bench of this Court, on its own motion, registered a writ Petition and issued a direction
to the Registrar General to collect all materials that may be available in respect of the telecast
and also directed NDTV to preserve the original material including the CD/video pertaining to
the sting operation. The question for our consideration is whether Mr. R.K. Anand and Mr.
I.U.Khan, Senior Advocates and Mr. Sri Bhagwan Sharma, Advocate have committed criminal
contempt of Court or not. It was observed that prima facie their acts and conduct were
intended to subvert the administration of justice in the pending BMW case and in particular to
influence the outcome of the pending judicial proceedings. Accordingly, in exercise of powers
conferred by Article 215 of the Constitution proceedings for contempt of Court (as defined in
Section 2(c) of the Contempt of Courts Act, 1971) were initiated against Mr. Anand, Mr. Khan
and Mr. Sri Bhagwan Sharma and they were asked to show cause why they should not be
punished accordingly. Court said that Courts of law are structured in such a design as to evoke
respect and reverence for the majesty of law and justice. The machinery for dispensation of
justice according to law is operated by the court. Proceedings inside the courts are always
expected to be held in a dignified and orderly manner. The very sight of an advocate, who was

6
Appeal No. 156 of 2007
7
151 2008 DLT 695 (Del., DB)
8
1998. 4 SCC 409
9
2009. 8 SCC 106
 found guilty of contempt of court on the previous hour,standing in the court and arguing a case
or cross-examining a witness on the same day, unaffected by the contemptuous behaviour he
hurled at the court, would erodethe dignity of the court and even corrode the majesty of it
besides impairing the confidence of the public in the efficacy of the institution of the courts.
This necessitates vesting of power with the HC to formulate rules for regulating theproceedings
inside the court including the conduct of advocates during such proceedings. That power should
not be confused with the right to practise law. Thus court held that there may be ways in which
conduct and actions of an advocate may pose a real and imminent threat to the purity of court
proceedings cardinal to any court’s functioning, apart from constituting a substantive offence
and contempt of court and professional misconduct. In such a situation the court does not only
have theright but also the obligation to protect itself. Hence, to that end it can bar the advocate
from appearing before the courts for an appropriate period of time. In the present case since the
contents of the sting recordings were admitted and there was no need for the proof of integrity
and correctness of the electronic materials. Finally the Supreme Court upheld High Court’s
verdict making Anand guilty on the same count. On the other hand, the Supreme Court let off
I U Khan, who was found guilty by the High Court.10

Misbehavior

Vinay chandra mishra, in re11; In this case a senior advocate in on being asked a question in the
court started to shout at the judge and said that no question could have been put to him. He
threatened to get the judge transferred or see that impeachment motion is brought against him

10
ibid
11
in re, 1995. 2. SCC 584
 in Parliament. He further said that he has turned up many Judges and created a good scene in
the Court. He asked the judge to follow the practice of this Court. He wanted to convey that
admission is as a course and no arguments are heard, at this stage. But this act was not only
the question of insultingof a Judge of this institution but it is a matter of institution as a whole.
In case dignity of Judiciary is not being maintained then where this institution will stand. The
concerned judge wrote a letter informing the incident to the chief justice of India. A show cause
notice was issued to him.

Whether the advocate had committed a professional misconduct? Is he guilty of the offence of
the criminal contempt of the Court for having interfered with and obstructed the course of
justice by trying to threaten, overawe and overbear the Court by using insulting, disrespectful
and threatening language, and convict him of the said offence. Since the contemner is a senior
member of the Bar and also adorns the high offices such as those of the Chairman of the Bar
Council of India, the President of the
U.P. HC Bar Association, Allahabad and others, his conduct is bound to infect the members of
the Bar all over the country. We are, therefore, of the view that an exemplary punishment has
to be meted out to him. Thus the contemner Vinay Chandra Mishra is hereby sentenced to
undergo simple imprisonment for a period of six weeks and he shall stand suspended from
practising as an advocate for a period of threeyears.

Strike

Ex-capt. Harish uppal V. Union of India12, Several Petitions raise the question whether lawyers
have a right to strike and/or give a call for boycotts of Court/s. The petitioners submitted that
strike as a mean for collective bargaining is recognised onlyin industrial disputes. He submitted
that lawyers who are officers of the Court cannot use strikes as a means to blackmail the Courts
or the clients. He submitted that the Courts must take action against the Committee members

12
2003(1)ALLMR(SC)1169
for giving such calls on the basis that they have committed contempt of court. He submitted
that the law is that a lawyer who has accepted a Vakalat on behalf of a client must attend Court
and if he does not attend Court it would amount to professional misconduct and also contempt
of court. He submitted that Court should now frame rules whereby the Courts regulatethe right
of lawyers to appear before the Court. He submitted that Courts should framerules whereby any
lawyer who mis-conducts himself and commits contempt of court by going on strike or
boycotting a Court will not be allowed to practice in that Court. He further submitted that
abstention from work for the redressal of a grievance shouldnever be resorted to where other
remedies for seeking redressal are available. He submitted that all attempts should be made to
seek redressal from the concerned authorities. He submitted that where such redressal is not
available or not forthcoming, the direction of the protest can be against that authority and
should notbe misdirected, e.g., in cases of alleged police brutalities Courts and litigants should
not be targeted in respect of actions for which they are in no way responsible. He agreed that
no force or coercion should be employed against lawyers who are not in agreement with the
“strike call” and want to discharge their professional duties.Respondent submitted that lawyers
had a right to go on strike or give a call for boycott. He further submitted that there are many
occasions when lawyers require to go, on strike or gave a call for boycott. He submitted that
this Court laying down that going on strike amounts to misconduct is of no consequence as the
Bar Councils have been vested with the power to decide whether or not an Advocate has
committed misconduct. He submitted that this Court cannot penalise any Advocate for
misconduct as the power to discipline is now exclusively with the Bar Councils. He submitted
that it is for the Bar Councils to decide whether strike should be resorted to or not. Petitioner
further relied on the case of Lt. Col. S.J. Chaudhary v. State (Delhi Administration13, the HC
had directed that a criminal trial go on from day to day. Before this Court it was urged that
the Advocates were not willing to attend day today as the trial was likely to be prolonged. It
was held that it is the duty of every advocate who accepts a brief in a criminal case to attend
the trial day to day. It was held that a lawyer would be committing breach of professional
duties if he fails to so

13
1984 CriLJ 340
 attend. In the case of K. John Koshy and Ors. v. Dr. Tarakeshwar Prasad Shaw14, one of the
questions was whether the Court should refuse to hear a matter and pass an Order when counsel
for both the sides were absent because of a strike call by the Bar Association. This Court held
that the Court could not refuse to hear the matter as otherwise it would tantamount to Court
becoming a privy to the strike. Consideringthe sanctity of the legal profession the court had
relied on words said in case of “In Indian Council of Legal Aid and Advice v. Bar Council of
India15, the SC observed thus : “It is generally believed that members of the legal profession
have certain socialobligations, e.g., to render “pro bono publico” service to the poor and the
underprivileged. Since the duty of a lawyer is to assist the court in the administration of justice,
the practice of law has a public utility flavour and, therefor, an advocate must strictly and
scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge
in any activity which may tend to lower the image of the profession in society. That is why the
functions of the Bar Council include the laying down of standards of professional conduct and
etiquette which advocates must follow to maintain the dignity and purity of the profession.” In
Re: Sanjeev Datta,16 the SC has stated thus: “The legal profession is a solemn and serious
occupation. It isa noble calling and all those who belong to it are its honourable members.
Although acquiring merely the qualification of technical competence can have the entry to the
profession, the honour as a professional has to be maintained by its members by their exemplary
conduct both in and outside the Court. The legal profession is different from other professions
in that what the lawyers do, affects not only an individual but the administration of justice which
is the foundation of the civilised society. Both as a leading member of the intelligentsia of the
society and as a responsible citizen, the lawyer has to conduct himself as a model for others
both in his professional and in his private and public life. The society has a right to expect of
him such ideal behavior. It must not be forgotten that the legal profession has always been held
in high esteem and its members have played an enviable role in public life. The regard for the
legal and judicial systems in this country is in no small measure due to the tireless role
played by the stalwarts in the profession to strengthen them. They took their profession
seriously and practice it with dignity, deference and devotion. If the profession is to survive,

14
1998 8SCC 624
15
1995 1,SCR 304
16
1995 CriLJ 2910
 the judicial system has to be vitalised. No service will be too small in making the system
efficient, effective and credible.” In the case of SC Bar Association v. Union of India17, it has
been held that professional misconduct may also amount to Contempt of Court. It has further
been held as follows: “An Advocate who is found guilty of contempt of court may also, as
already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council
of the State or Bar Council of India to punish that advocate by either debarring him from
practice or suspending his licence, as may be warranted, in the facts and circumstances of each
case. The learned Solicitor General informed us that there have been cases where the Bar
Council of India taking note of the contumacious and objectionable conduct of an advocate,
had initiated disciplinary proceedings against him and even punished him for “professional
misconduct”, on the basis of his having been found guilty of committing contempt of court.”

Solicitation of Professional work

Rajendra V. Pai V. Alex Fernandes and Ors18. Court held that debarring a person frompursuing
his career for his life is an extreme punishment and calls for caution and circumspection before
being passed. No doubt probity and high standards of ethicsand morality in professional
career particularly of an advocate must be maintained and cases of proved professional
misconduct severely dealt with; yet, we strongly feelthat the punishment given to the appellant
in the totality of facts and circumstances of the case is so disproportionate as to prick the
conscience of the Court. Undoubtedly, the appellant should not have indulged into prosecuting
or defending a litigation in which he had a personal interest in view of his family property being
involved.

Breach of Trust By Misappropriating The Asset Of Client

17
1998. 4 SCC 409
18
AIR 2002 SC 1808
Harish Chandra Tiwari v. Baiju19; Court held on these fact, Appellant Harish ChandraTiwari
was enrolled as an advocate with the Bar Council of the State of UP in May 1982 and has been
practising since then, mainly in the courts at Lakhimpur Kheri District in UP. Respondent Baiju
engaged the delinquent advocate in a land acquisition case in which the respondent was a
claimant for compensation. The Disciplinary Committee has described the respondent as “an
old, helpless, poor illiterate person.” Compensation of Rs. 8118/- for the acquisition of the land
of the said Baiju was deposited by the State in the court. Appellant applied for releasing the
amount and as per orders of the court he withdrew the said amount on 2.9.1987. Buthe did
not return it to the client to whom it was payable nor did he inform the client about the receipt
of the amount. Long thereafter, when the client came to know of it and after failing to get the
amount returned by the advocate, compliant was lodged by him with the Bar Council of the
State for initiating suitable disciplinary action against the appellant. Court held that among the
different types of misconduct envisaged for alegal practitioner misappropriation of the client’s
money must be regarded as one of the gravest. In this professional capacity the legal practitioner
has to collect money from the client towards expenses of the litigation, or withdraw money
from the court payable to the client or take money of the client to be deposited in court. In all
such cases, when the money of the client reaches his hand it is a trust. If a public servant
misappropriates money he is liable to be punished under the present Prevention of Corruption
Act, with imprisonment which shall not be less than one year. He is certain to be dismissed
from service. But if an advocate misappropriates money of theclient there is no justification in
de-escalating the gravity of the misdemeanor. Perhaps the dimension of the gravity of such
breach of trust would be mitigated when the misappropriation remained only for a temporary
period. There may be justificationto award a lesser punishment in a case where the delinquent
advocate returned the money before commencing the disciplinary proceedings.

Informing About Bribe:

Shambhu Ram Yadav v. Hanuman Das Khatry20, the Court upheld the order of bar council of

19
AIR 2002 SC 548.

20
2001 6 SCC 1. 165
India dated 31st July 1999, which held that the appellant has served as advocated for 50 years
and it was not expected of him to indulge in such a practice of corrupting the judiciary or
offering bribe to the judge and he admittedly demanded Rs.10,000/- from his client and he
orally stated that subsequently order was passed in his client’s favour. This is enough to make
him totally unfit to be a lawyer by writing the letter in question. We cannot impose any lesser
punishment than debarring him permanently from the practice .His name should be struck off
from, the roll of advocates maintained by the Bar Council of Rajasthan. Hereafter the
appellant willnot have any right to appear in any Court of Law, Tribunal or any authority. Court
impose a cost of Rs. 5,000/- to the appellant which should be paid by the appellant to the Bar
Council of India which has to be within two months.
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 aduty 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 toavoidable 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 disrepute, and
ensure that at no point of time, heoversteps the limits of propriety.

BIBLIOGRAPHY

BARE ACTS-

 Advocates’ Act 1961

 The Indian Bar Councils Act 1926

Websites

 www.legalservicesindia.com
 www.blog.ipleaders.in
 www.penacclaims.com
 www.academia.edu
 www.lpcc.sa.gov