PROFESSIONAL

MISCONDUCT OF
LAWYERS: AN
ANALYSIS OF
HARISH CHANDRA
TIWARI VS BAIJU PRESENTED BY: RUBEN RAO
SAHIL JAGTAP
 BRIEF ESSENCE

In this case the Hon‘ble Supreme Court of India addressed the issue of
professional misconduct of the Advocates and set out certain
parameters on which the Bar Council can weigh upon while deciding
the quantum of punishment.
The Court also opined that embezzlement of client‘s money by an
advocate is regarded as the severest and there is no justification in
reducing the quantum of punishment as it is a clear breach of trust of
the client and thereby maligning the reputation of the noble profession
of advocacy.
 PARTIES

1. The Appellant, Harish Chandra Tiwari is a practicing

Advocate and is enrolled with the Bar Council of UP
since May 1982 and has been practicing in the courts at
Lakhimpur Kheri District in U.P.
2. The Respondent, Baiju is the client of Adv. Harish
Chandra Tiwari and has engaged Mr. Harish in a land
acquisition case in which the Respondent was the
Claimant for compensation.
 FACTS OF THE CASE

 In this case Mr. Baiju hired Mr. Harish Chandra Tiwari for a land acquisition
case who was an enrolled as an Advocate with the Bar Council of UP since
1982 and has been practicing in the District Courts of UP mainly in Lakimpur
Keri District.

 Mr. Baiju was the claimant for the compensation in the case for which after
he won, the State deposited a compensation of Rs. 8118/- in the Court. Mr.
Baiju was an old, helpless, and poor illiterate person.

 Mr. Harish Chandra Tiwari on behalf of his client withdrew the said amount
from the Court on 02.09.1987 and did not informed and did not retuned that
amount to his client Mr. Baiju to whom the amount was payable.
 FACTS OF THE CASE

 Mr. Baiju after a long time came to know about this and after failing to recover the
amount from his lawyer, he filed a complaint with the Bar Council of UP to look into this
matter and take suitable disciplinary action against the Appellant.

 On 12.07.1988, the Appellant admitted that he was engaged as the counsel for the
Respondent in a land acquisition case and he withdrew the amount from the Court, but he
returned it to the Respondent after deducting the appropriate legal fees and expenses.

 On 03.08.1988, the appellant filed an affidavit on behalf of the respondent without his
knowledge before the Bar Council of UP in which it was clearly stated that a
compromise has been entered between the Appellant and the Respondent and there is no
need take any further action on the complaint filed by the Respondent. Not being
convinced, the State Bar Council summoned the Respondent for the verification of the
said Affidavit, where the Respondent denied the contents of the affidavit and told that
there was no such compromise between the Appellant and the Respondent and
disclaimed that he received any compensation amount.
 FACTS OF THE CASE

 After the said incident, the case was transferred to the Bar Council of India under Section 36B
(2) of the Advocates Act 1961 to start the disciplinary proceedings against the Appellant.

 The Disciplinary Committee after having viewed the contents of the case concluded that affidavit
filed by the Appellant was a forged one and was fabricated. Therefore, the conduct of Mr. Harish
Chandra Tiwari and his elusive imprecise testimony duly makes out that after taking the cheque
from the Land Acquisition Officer in his own name, Mr. Harish failed to make the compensation to
Mr. Baiju who is uneducated, poor person and his money has been misappropriated by the
delinquent Advocate.

 The Appellant was not able to prove that he has paid the amount to the Respondent and the factual
position remains against him. The Appellant withdrew the amount and failed to deliver it to his
client for more than 11 years and therefore is guilty of professional misconduct and has smeared the
reputation of the entire moral vocation and has committed a breach of trust.
 After the decision of the Disciplinary Committee which held Mr. Harish guilty of breach of trust
for misappropriating the assets of the client and imposed a punishment of suspending him from
practice for a period of 3 years. Aggrieved by the decision of the Disciplinary Committee, the
Appellant hereby preferred appeal to the Supreme Court of India under Section 38 of the Advocates
Act 1961.
 ISSUES

1. Whether the punishment shall be enhanced to the removal of the name of

the Advocate from the Roll of the Bar Council of UP or not?

2. What all factors needs to be determined while awarding a punishment

by the Disciplinary Committee on proved misconduct?

3. Does Supreme Court have the power to vary or alter the punishment
awarded by the Disciplinary Committee of the Bar Council of India?
 APPLICABLE LAWS

• Section 38 of the Advocates Act 1961– Appeal to the Supreme Court.

• Section 36B (2) of the Advocates Act 1961– Disposal of

Disciplinary Proceedings.

• Section 35 of the Advocates Act 1961– Punishment of Advocates for

Misconduct.
ARGUMENTS ADVANCED BY PARTIES

 The Appellant contended that he is not liable to be punished at all and on

the other hand pleaded that he has returned the money to his client.

 The Appellant also contended that he withdrew the amount out of the court in
order to return it to the client after deducting his legal fees and expenses and
also filed an affidavit stating that there has been a compromise between him
and his client.

 The Appellant also cited two citations in his favor in which the
punishment awarded has not been escalated to the removal of the
Advocate from the Roll itself. The Appellant cited Prahlad Saran Gupta
vs Bar Council of India and Another, where the crook advocate retained
a sun of Rs 1500 without sufficient justification for a period of 4 years and
then submitted the said amount in the court without dispersing the amount
to his client. Therefore, it was held that this act of the Advocate was not in
harmoniousness with the professional standards and the court imposed a
punishment of reprimanding the advocate concerned.
ARGUMENTS ADVANCED BY PARTIES

 Another case cited by the Appellant is BR Mahalkari vs YB

Zurange, in which the advocate retained the sum of Rs 1176/-
which was returned by him to the client before the proceedings by
disciplinary committee were initiated.

 Therefore, the committee found the advocate guilty of professional

misconduct and disbarred him from practicing for a period of 3
years.
 DECISION

 In the following case the Supreme Court opined that the cases cited
by the Appellant are of no help as the facts of the case in different are
totally different and speak for themselves. Therefore, Supreme Court
held that the misconduct of the Appellant is of a far pointrel breadth.
 The Supreme Court imposed the punishment of removal of the name
of the Appellant from the roll of the Advocates and was held
debarred from practicing in any court of law or before any authority
or person in India.
 The Supreme Court said that the cases cited by the Appellant will not
help in extenuating the quantum of punishment.
 SUMMARY

 In this case analysis, the Supreme Court examined the actions of the Appellant, who was
unable to prove his innocence regarding embezzlement of client funds. The Court found
him guilty of professional misconduct and criminal breach of trust for withholding client
funds for over 11 years. Additionally, the Appellant submitted a forged affidavit to halt
disciplinary proceedings, further aggravating the offense.
 The Supreme Court enhanced the punishment, removing the Appellant from the Bar
Council of UP and prohibiting him from practicing law in India. It established criteria for
determining punishment severity, emphasizing the need to maintain legal professionalism
and deter misconduct.
 Embezzlement of client funds is deemed a severe offense due to the fiduciary relationship
between lawyer and client. However, if the funds are returned before disciplinary action,
the penalty may be mitigated, provided proper justification is given.
 Under Section 38 of the Advocates Act 1961, the Supreme Court has authority to vary
punishments imposed by the Bar Council, ensuring a fair opportunity for the Advocate to
be heard. Section 35 of the Act outlines three potential punishments: reprimand,
suspension, or removal from the state roll of advocates.
THANK YOU!