PROFESSIONAL ETHICS PROJECT in partial fulfillment for the award of the degree of BACHELOR OF LAW
AMITY UNIVERSITY , NOIDA
SUBMITTED BY: MANASHWI SAHAY 9TH SEMESTER B.A LLB (Hons) A3208307062 AMITY LAW SCHOOL , NOIDA
BREACH OF PROFESSIONAL ETHICS BY LAWYERS : CRITICAL ANALYSIS
AMITY LAW SCHOOL, NOIDA
BONAFIDE CERTIFICATE T h i s i s t o c er t i f y t h a t t h e p r oj e c t w or k “ B R E A C H O F P R O F E S S I O N A L E T H I C S B Y L AW Y E R S : C R I T I C A L A N A LY S I S ” i s a b o n a f i d e r e c o r d o f w or k d o n e b y “MANASHWI SAHAY (A3208307062) ”u n d e r m y g u i d a n c e i n p a r t i a l f ul f i l l m e n t of t h e r e q u i r e m e n t s f o r t h e B . A L .L . B p r o gr a m m e i n PROFESSIONAL ETHICS t o L i br a r y a n d I nf o r m a t i o n S e r vi c e s .
SIGNATURE Dr. Asha Verma LECTURER, PROFESSIONAL ETHICS AMITY LAW SCHOOL, NOIDA
ACKNOWLEDGEMENTS
I take immense pleasure in thanking my director sir Maj. Gen. Nilendra Kumar
for having permitted me to carry out this project
work. I wish to express my deep sense of gratitude to my Internal Guide, for able guidance and useful suggestions, which helped me in completing the project work, in time. Needless to mention Dr. Asha Verma , lecturer PROFESSIONAL ETHICS, Amity
Law School , Noida , who had been a source of inspiration and for his timely guidance in the conduct of my project work. Words are inadequate in offering my thanks to the Project Trainees and Project Assistants. Finally, yet importantly, I would like to express my heartfelt thanks to my beloved parents for their blessings, my friends/classmates for their help and wishes for the successful completion of this project.
MANASHWI SAHAY 9th semester A3208307062 (AMITY LAW SCHOOL, Noida)
PREFACE Legal profession is noble profession. The nobility of the legal profession is maintained by the adherence and observance of a set of professional norms by those who adopt this profession. It is knows as legal ethics or the ethics of the legal profession. The fundamental of the legal ethics is to maintain the owner and dignity of the law profession, to secure a spirit of friendly cooperation between Bench and Bar in the promotion of highest standard of justice, to establish honorable and fair dealings of the counsel with his client, opponent and witness, to establish a spirit of brotherhood with bar. As contempt of court is a part of the syllabus, contempt of the court is a serious challenge to the majesty of law. Some times it is committed in ignorance that is condemner has no knowledge as to the meaning of contempt. At the same time a definitions of the expression “contempt of court” is of much utility, but there is clear and definite definition of this term. In common parlance it can be said that it is a act or omission which interferes with the administration of justice, disobedience to order of the court or breach of undertaking given to court, it will amount to contempt of court only when the disobedience or breach is willful. The Bar and Bench play important role in the administration of justice. The judges administer the law with the assistance of the lawyers. The lawyers are the officers of the court. They are expected to assist the court in the administration of justice. As the officers of the court the lawyers are required to maintain toward the court respectful attitude bearing in mind that the dignity of the judicial office is essential foe the survival of the society mutual respect is necessary for the maintenance o the cordial relations between the Bench and Bar. The judges play important role in the maintenance of rule of law which is essential for the existence of the orderly society.
TABLE OF CONTENT . BONAFIDE CERTIFICATE . ACKNOWLEDGEMENT . PREFACE .CHAPTER 1 – INTRODUCTION .CHAPTER 2 – LAWYERS PROFESSIONAL ETHICS TO STATE AND PUBLIC .CHAPTER 3 – LAWYERS AND ETHICS .CHAPTER 4 – BREACH OF PROFESSIONAL ETHICS BY LAWYERS .chapter 5 – CONCLUSION .BIBLIOGRAPHY
CHAPTER 1
INTRODUCTION The Legal Profession in India India has the worlds second largest legal profession with more than 600,000 lawyers . The predominant service providers are individual lawyers, small or family based firms . Most of the firms are involved in the issues of domestic law and majority work under country’s adversarial litigation system. The conception of legal services as a ‘noble profession’ rather than services resulted in formulation of stringent and restrictive regulatory machinery. These regulations have been justified on the grounds of public policy and ‘dignity of profession’ . The judiciary has reinforced these principles, which can be reflected in words of Justice Krishna Iyer, when he noted, Law is not a trade, not briefs, not merchandise, and so the heaven of commercial competition should not vulgarize the legal profession. However over the years courts have recognized ‘Legal Service’ as a ‘service’ rendered to the consumers and have held that lawyers are accountable to the clients in the cases of deficiency of services. In the case of Srinath V. Union of India(AIR 1996 Mad 427) Madras High Court held that, in view of Sec. 3 of Consumer Protection Act, 1986. Consumer redressal forums have jurisdiction to deal with claims against advocates. Sec. 2 (U) of competition Act, 2002 defines the term ‘Service’ along the lines of consumer protection Act, 1986. Thus it may be concluded that legal services are becoming subject of trade related laws where consumerism and market forces should be given adequate space . Changing Face of Legal Profession Globalization brought about a revolution in international trade with increasing participation and involvement of countries & greater access to domestic economies. The implication of the same on the legal service sector has been both quantitative and qualitative. The past decade has been mini-revolution in legal service sector with the greatest legal impact on corporate legal arena Activities in project financing, intellectual property protection, environmental protection, competition law, corporate taxation, infrastructure contract, corporate governance and investment law were almost unknown before 90’s. Number of Law firms capable of dealing such work was very few . It is evident that need of professional service has been tremendous in the legal service sector. In last few years Law Firms, in house firms and individual lawyer’s expertise in providing legal services in corporate sector has increased by several times. These new Law Firms primarily engage and loan instrument, writing infrastructural contracts, power contract, drafting of project finance, contracts, finalizing transnational investment, joint venture and technology transfer contracts. This is discerning shift in the disposition of emerging legal sectors towards settling disputes through ADRS rather adversarial litigation mode of dispute resolution Globalization has thus expanded the internal and external demand for legal services . Today in legal services is on inevitable fact. At the same time significant for progressive development of legal profession in India in this era of Globalization. Legal Service Sector The term legal services sector is completely, different type of services as compared to
software programming, medical practice or other professional services. Though it is more or less protected from intrusion due to the fact that its traditional base is derived not only from statutes and the existence of statutory bodies but also from conservative and traditional mind set that inhibit development of cross border services supply. Even globally the legal services sector is necessarily shackled by jurisdictional constraints such of the requirement for a degree from the country where the service is to be imparted. Some local considerations apply only to certain aspects of legal services and not to others. Where the local considerations are important they must be preserved and exceptions made, must only for global market access. Thus on the one hand there is the need to be part of a global fraternity and to make beneficial commitments that promote trade in services and on the other hand there is need to preserve national interest.
CHAPTER 2
LAWYERS PROFESSIONAL ETHICS TO STATE AND PUBLIC
Professional ethics are a set of norms or codes of conduct, set by people in a specific profession. A code of ethics is developed for each profession. Suppose you write articles in a newspaper. Professional ethics require that you verify facts before you write that article, isn’t it? Simply put, professional ethics for lawyers in India lay down a set of guidelines, which defines their conduct in the profession that is highly competitive and dynamic. Indian law requires lawyers to observe professional ethics to uphold the dignity of the profession. People are surprised when they hear that lawyers are expected to follow professional ethics and that they are accountable for dishonest, irresponsible and unprofessional behavior. Further, most people do not know that lawyers in India can lose the license to practice if they are found guilty of unethical practices that tarnish the dignity of their profession. A lawyer must adhere to the professional norms, for fair dealing with his client and to maintain the dignity of the profession.
CHAPTER 3
LAWYERS AND ETHICS 1. Law touches every aspect of life more so in commercialized urban cities for example the developing branches in matrimonial, consumer, pollution, intellectual property, health, education, constitutional rights, human rights, taxes fees, revenues, foreign trade, company laws, telecom laws so on and so forth. 2. Justice is great interest of man of earth. Justice is a supreme virtue. It is in this context a lawyer come into being. The dictionary meaning of lawyer means the member of legal fraternity. We find the reference of the role of lawyer in ancient texts. The word Vakil is Indian nomenclature, which means an agent. 3. The legal profession existed in Hindu and Buddhistic times and during the Mogul Period. The U.S.A. was the first civilized country to formulate the code of ethics for legal profession. As far as back in 1873, the East India Company had appointed the pleader for civil suits and from time to time their various acts, enactment and regulations were formulated for the legal profession. The Legal Practitioner Act 1879 was enacted for the legal profession. In 1923 Indian Bar Committee was constituted. In 1951 All India Bar Committee was constituted to look into various enactments. Gradually the Code of Conduct was also evolved from time to time for the members of legal profession. And now Advocates Act 1961 is enacted by Government of India. The Bar Association of India announced on 15.1.1962 code of ethics for the legal profession. Under the Advocates' Act an Advocate means an Advocate enrolled under the Act. 4. Law streams from Soul of people, like national poetry. It is as holy as national religion. It grows and spreads like language. The religions ethics and political elements of contribute to its vital force. It is distilled essence of civilization of people. It reflects the People's soul more clearly than organism. It is said that the civilization of any country is tested by the fact as to how the administration of justice for criminals is administered. 5. He who practices law is not merely a lawyer but acts as moral agent and that character he cannot shake off by any other character on any professional character. He derives from the belief that he shares sentiment of all mankind. This influence of his morality is one of his possession, which like all his possessions he is bound to use for moral ends. He makes it the supreme object of his life. To cultivate his moral being is his higher aim. Members of the Bar like Judges are the officers of the Court and like Judges, he should be of good behaviour. Nothing, which is morally wrong, can be professionally right. 6. A lawyer shall not act contrary to basic principles of morality and at all times shall act honestly. He should not render any service or give advice involving breach of law or implying disrespect to the established judiciary. He should
conduct himself with due dignity and self-respect and shall assist in the enforcement of law and administration of justice. He is the backbone of the society. In each field and on each step in the legal field we require the morality of the Advocate. Please consider it very seriously. As I said the country need men of character and virtues. We only preach and do not practice. The lawyer and the legal profession and laws have been neglected. Since independence and we are now facing break down of administrative machinery that we have to file proceedings for enforcement of duties. 7. The lawyer who is moralist spends sleepless night as his conscience pricks him in many ways. More often, member of the public doubt the morality of the advocacy. The professional conduct of the advocate had been the focus of the society on several occasions. Generally a lawyer is perceived as defender of the accused and the general concept of law is only confined to criminals but that is not true. As I said the role of lawyer is very important in each and every field of the life. One of the very important role is that the lawyers are also responsible for teaching of law. In fact, the Bar Council is responsible for imparting law education. The practicing lawyers therefore, teach in law collages. They also play important role in law reform. By reason of his experience gained in the daily application and interpretation of laws, lawyers are best aware of its imperfection of the legal system. And they constitute the most competent class of men to advise on law reform. 8. Advocacy is the respectable noble profession on the principles. Firstly, the Advocate is not expressing his own opinion. Secondly, Advocate performs on behalf of his client. Thirdly, his primary function is to assist to Court to determine his clients' rights. In fact, Supreme Court in case of the Bar Council of Maharashtra and Goa has observed "Legal Profession is a partner with judiciary in the administration of the justice". 9. The Advocate owes duty to the client, court, to the society and to the profession. 10. The Advocate owes a very substantial duty to the person who puts his life, liberty, finances, reputation, or general happiness into his hands. The client 'must rely on him at times for fortune and character and life'. His obligation is to represent his client, any client, no matter how unmeritorious the case, 'no matter how great a ill-reputed the man may be, no matter how undeserving or unpopular his cause'. 11. When counseling the client, a lawyer can and should express his opinions fully and frankly about all aspects of the case, legal and ethical. The client can insist on having clear and definite advice as to what is going to happen in court and, in many cases, what is going to be reported in the newspapers. 12. In giving the advice, he should act honestly and in good faith and shall not take advantages of ignorance of the client. He shall devote to the client's cause is executed and skill to the utmost of his ability. An Advocate shall not disclose any matter communicated to him in his professional capacity nor use any knowledge obtained in any other proceedings except with the
consent of his client. An Advocate is bound to accept any proof unless there are special circumstances justifying his refusal. An Advocate shall decline to accept a brief, in a case where he believes or likely to be called as a witness. An Advocate shall not refuse the defence of a person accused of crime if he personally feels that he is guilty of crime and once accepted, he has to conduct and defend to the best of his ability. 13. An Advocate shall not deal with the client's property so as to acquire any interest for personal benefit or gain by taking advantage of confidence, repose in him by his client. He should not lend any money, to the client for any action or legal prosecution. He should not acquire in any manner whatsoever any interest in the subject matter of the litigation. He should not stand surety for his client. 14. An Advocate shall conduct himself with due dignity and self-respect. He should show due respect to the Judiciary Office and shall not act so as to undermine confidence in Judiciary. He is not supposed to excert any personal influence on the Court nor gives any impression that he possesses personal influence with the Court of Judge. 15. He shall not render any services or give advice to imply disrespect to the establishment of judiciary. He shall assist in the administration of justice. He should be respectful to the judicial officers and shall not act in any manner to undermine confidence in Judiciary. He should be frank and fair with the Court. He should not make a deliberate wrong statement or deliberately misquote the contents of the document, testimony of the witness, the opinion or argument of opposing Counsel, any of decision or a context in the book, to cite authority and decision, or that has been overruled or statute that has been repealed or amended. An Advocate shall not include any fact, which he knows to be false in drawing up pleadings, petitions or affidavits. An Advocate shall not claim as a fact unless upon evidence on record. An Advocate shall not speak ill of judges or making disparaging remarks or by law unless he is satisfied himself. A prosecution with hostility to the Accused or to secure a conviction at all cause. An Advocate shall try the avoid any remark or question purely calculated to scandalize, humiliate or embarrass. 16. For the third category, the Advocate shall uphold the Constitution, helping the maintenance of the rules and of law, promote the advancement of justice and assist in the enforcement of fundamental rights of the people. He shall act honestly. The lawyer's right to live and to live by application of his brain operates in the protection of every rights and in the maintenance of every defence authorized by the law of the land is a part of our Constitution. When that right is surrendered, those principles will also suffer. We have seen the era after Independence and seen the development of basic fundamental rights. We have also experience the importance of duties and rights of committed lawyers during Emergency. Subsequently a number of important national issues have been taken up by lawyers and have been effective in maintaining ethics of law. The law must be maintained and enforced, it must be vindicated, but this must be for the healing of the rule of law not for the vengeance upon the individual.
17. The fourth duty of an Advocate towards the profession is that he shall not speak ill of the profession but shall conduct himself in a such a way as to enhance regard, respect sympathy and strive to maintain the honour and dignity of the profession. An Advocate shall not discuss case or appeal, should not divert or solicit work by advertisement. An Advocate shall not engage intermediaries for procuring work. An Advocate shall not engage himself in any other business or he should not be a full time salaried employee of any firm, corporation, concern. An Advocate may act as an arbitration or umpire. An Advocate is not supposed to wear his uniform, robes or a gown in public or when appearing as witness. He should be fair to his opponents. He should not adopt sharp practices. He should be polite to be opponents.
CHAPTER 4
BREACH OF PROFESSIONAL ETHICS BY LAWYERS 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 behaviour outside the bounds of what is considered acceptable or worthy of its membership by the governing body of a profession.[1] Professional misconduct refers to disgraceful or dishonourable conduct not befitting an advocate[2]. 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, proviso says, is relevant in this context. This proviso say, where on receipt of a complain 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. In depth the provisions are discussed in the later part. Generally legal profession is not a trade or business, it’s a gracious, the noble, and decontaminated profession of the society. Members belonging to this profession have not to 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 the members of the profession conduct themselves. It’s a symbol of healthy relationship between Bar and Bench. There is heavy responsibility on those on whom duties’ are vested by the virtue of being a part of my most credible as plausible profession of the society. The Advocates Act, 1961 as well Indian Bar Council are silent in providing exact definition for profession misconduct because of its scope, though under Advocate Act, 1961 to take disciplinary action punishment are prescribed when the credibility and reputation on the profession comes under a clout on account of acts of omission and commission any member of the profession.
What Is The Code Of Conduct Prescribed For An Advocate? The Bar Council Rules prescribe a strict code of conduct for advocates, it has to follow[3]: No advertising or soliciting work, it is against an advocate’s code of ethics to solicit or advertise work and amounts to a 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, profession and 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 practising 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 specialises in a particular kind of work, or that he is or was associated with any person or organisation or with any particular cause or matter. Not 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 unauthorised practice; An advocate may not allow his professional services or his name to be associated with, or be used for any unauthorised practice of law by any lay agency. Not enter appearance without consent of the advocate already engaged: an advocate is prohibited from entering appearance in a case where there is already another advocate 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 fulfil 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. Procedure Followed On The Notice Of Professional Misconduct The following is the procedure followed (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 advocate 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 enquiry under Section 35 is outlined in Part VII of the Bar Council of India Rules2 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 Advocate 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.
Contempt Of Court As Misconduct In the recent case of B. M. Verma v. Uttrakhand Regulatory Commission[4] court noted that, it was given the wide powers available with a Court exercising contempt jurisdiction, court quoted several he Delhi HC, in the case of Court of Its Own Motion v. State [5], dealing with the contempt 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 inSC Bar Association v. Union of India[6] the Court is in effect the jury, the judge and the hangman; while in M.R. Parashar H. L. Sehgal it was observed that the Court is also a prosecutor. Anil Kumar Sarkar v.Hirak Ghosh[7], reiterates this.’ In the most controversial and leading case of R.K. Ananad vs. Registrar of Delhi HC[8] facts, 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. ISSUE :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 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, 1972) 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. HELD : 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 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 erode the 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 the proceedings 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 a malefactor who is 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 the right but also the obligation to protect itself. Hence, to that end it can bar the malefactor from appearing before the courts for an appropriate period of time. In the present case since the contents of the sting recordings were admitted in the present case, there was no need for the proof of integrity and correctness of the electronic materials. Finally the SC upheld HC’s verdict making Anand guilty on the
same count. On the other hand, the SC let off I U Khan, who was found guilty by the HC. Attempt Of Murder: In the case of Hikmat Ali khan v. Ishwar prasad arya and ors[9], FACTSIshwar Prasad Arya, respondent No. 1, was registered as an advocate with the Bar Council of Uttar Pradesh and was practising at Badaun. An incident took place on May 18, 1971 during lunch interval at about 1.55 p.m., in which respondent No. 1 assaulted his opponent Radhey Shyam in the Court room of Munsif/Magistrate, Bisauli at Badaun with a knife. A pistol shot is also said to have been fired by him at the time of incident. After investigation he was prosecuted for offences under Section 307 of the Indian Penal Code and Section 25 of the Arms Act. The 1st Temporary Civil and Sessions Judge, by his judgment dated July 3, 1972, convicted him of the said offence and sentenced him to undergo rigorous imprisonment for three years for the offence under Section 307, I.P.C. and for a period of nine months for offence under Section 25 of the Arms Act.
On the basis of the said complaint disciplinary proceedings were initiated against respondent No. 1 by the Bar Council of U.P. he was found guilty of gross professional mis-conduct by taking the benefit himself of a forged and fabricated document which had been prepared at his behest. The Disciplinary Committee of the Bar Council of U.P. directed that respondent No. 1 be debarred from practising as an advocate for a period of two years from the date of the service of the order. Respondent No. 1 filed an appeal, the said appeal was allowed by the Disciplinary Committee of the Bar Council of India by order dated June 8, 1984 and the order of the Disciplinary Committee of the Bar Council of U.P. dated January 30, 1982 was set aside on the view that there was no material on the basis of which it could reasonably be held that respondent No. 1 had prepared the document which was subsequently found forged.Further the submission of Shri Markendaya is that having regard to the gravity of the misconduct of respondent No. 1 in assaulting his opponent in the Court room with a knife and his having been committed the offence under Section 307, I.P.C. and his being sentenced to undergo rigorous imprisonment for three years in connection with the said incident, the punishment of removal of the name of respondent No. 1 from the roll of advocates should have been imposed on him and that the Disciplinary Committee of the Bar Council of U. P. was in error in imposing the light punishment of debarring respondent No. 1 from practising as an advocate for a period of three years only and that this was a fit case in which the appeal filed by the appellant should have been allowed by the Disciplinary Committee of the Bar Council of India. HELD: The acts of mis-conduct found established are serious in nature. Under Subsection (3) of Section 35 of the Act the Disciplinary Committee of the State Bar] Council is empowered to pass an order imposing punishment on an advocate found guilty of professional or other mis-conduct. Such punishment can be reprimand [Clause (b)], suspension from practice for a certain period [Clause (c)] and removal of the name of the advocate from the State roll of advocate [Clause (d)], depending on the gravity of the mis-conduct found established. The punishment of removal of the name from the roll of advocates is called for where the misconduct is such as to show that the advocate is unworthy of remaining in the profession. In this context, it may be pointed out that under Section 24(A) of the Act a person who is convicted of an offence involving moral turpitude is disqualified for being admitted as an advocate on the State roll of advocates. This means that the conduct involving conviction of an
offence involving moral turpitude which would disqualify a person from being enrolled as an advocate has to be considered a serious misconduct when found to have been committed by a person who is enrolled as an advocate and it would call for the imposition of the punishment of removal of the name of the advocate from the roll of advocates. In the instant case respondent No. 1 has been convicted of the offence of attempting to commit murder punishable under Section 307, IPC. He had assaulted his opponent in the Court room with a knife. The gravity of the mis-conduct committed by him is such as to show that he is unworthy of remaining in the profession. The said mis-conduct, therefore, called for the imposition of the punishment of removal of the name of respondent No. 1 from the State roll of advocates and the Disciplinary Committee of the Bar Council of U. P., in passing the punishment of debarring respondent No. 1 from practising for a period of three years, has failed to take note of gravity of the misconduct committed by respondent No. 1. Having regard to the facts of the case the proper punishment to be imposed on respondent No. 1 under Section 35 of the Act should have been to direct the removal of his name from the State roll of advocates. The appeal filed by the appellant, therefore, deserves to be allowed. Finally court held that the respondents name should be removed from the rolls. Misbehaviour As Misconduct Vinay chandra mishra, in re [10] facts; 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 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 insulting of 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. ISSUE: whether the advocate had committed a professional misconduct? Is 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 three years. Strike As Misconduct Ex-capt. Harish uppal V. Union of India[11]facts, Several Petitions raise the question whether lawyers have a right to strike and/or give a call for boycotts of Court/s. In all these Petitions a declaration is sought that such strikes and/or calls for boycott are illegal. As the questions vitally concerned the legal profession, public notices were issued to Bar Associations and Bar Councils all over the country. Pursuant to those notices some Bar Associations and Bar Councils have filed their responses and have appeared and made submissions before us. ISSUE: whether the lawyers have a right to strike. ARGUMENTS: petitioners submitted that strike as a mean for collective bargaining is recognised only in 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 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 regulate the right of lawyers to appear before the Court. He submitted that Courts should frame rules 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 should never 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 not be 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 Administration[12], 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 to day 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 attend. In the case of K. John Koshy and Ors. v. Dr. Tarakeshwar Prasad Shaw[13], 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. HELD : considering the 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 India[14], the SC observed thus : “It is generally believed that members of the legal profession have certain social obligations, 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,e he 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[15], the SC has stated thus: “The legal profession is a solemn and serious occupation. It is a
noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, 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, 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 India[16] it has been held that professional misconduct may also amount to Contempt of Court (para 21). 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 Vs. Alex Fernandes and Ors.[17]court held that debarring a person from pursuing 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 ethics and morality in professional career particularly of an advocate must be maintained and cases of proved professional misconduct severely dealt with; yet, we strongly feel that 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. Excepting the instance forming gravamen of the charge against the appellant there does not appear to have been any other occasion where the appellant may have defaulted or misconducted himself. 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 Harish Chandra Tiwari v. Baiju[18]; Court held on these fact, Appellant Harish Chandra Tiwari 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. But
he 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.HELD, Court held that among the different types of misconduct envisaged for a legal 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 the client there is no justification in de-escalating the gravity of the misdemeanour. 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 justification to award a lesser punishment in a case where the delinquent advocate returned the money before commencing the disciplinary proceedings. Informing About Bribe : Misconduct Shambhu Ram Yadav v. Hanuman Das Khatry,[19]It was that Court upheld the order of bar council of 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 will not 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 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. References: C. Rama Rao, Y. Vijayalakshmi Tayaru, Y. Nageswara Rao, Professional Ethics & Advocacy,Visakhapatnam : Gayatri Books, 1987. Prassad Anirudh, Principles of the ethics of legal profession in India : accountancy for lawyers and bench-bar relations including contempt of court, Jaipur University Book House, 2004.
Rai. K., History of courts, legislature & legal profession in India, Faridabad : Allahabad Law Agency, 1985. Krishnamurthy C, Legal Education and Legal Profession In India, International Journal of Legal Information,36, no. 2, (2008): 245-26 [1] www.businessdictionary.com/…/professional-misconduct.html accessed on 12March 2010 [2] Vincent Vs. UOI, AIR 1987 SC 990 [3] http://www.indlaw.com/display.aspx?477320d7-5e3f-406f-afb2-4c89753da052/ [4] Appeal No. 156 of 2007 [5] 151 (2008) DLT 695 (Del., DB) [6] (1998) 4 SCC 409 [7] (2002) 4 SCC 21 [8] (2009) 8 SCC 106 [9] [1997] RD-SC 87 [10] (1995) 2 SCC 584 [11] 2003(1)ALLMR(SC)1169 [12] MANU/SC/0094/1984: 1984CriLJ340 [13] MANU/SC/1313/1998 : (1998)8SCC624 [14] [1995]1SCR304 [15] 1995CriLJ2910 [16] Supra Note 6 [17] AIR 2002 SC 1808 [18] 2002 SCC (Cri,) 294 (SC): AIR 2002 SC 548 [19] (2001) 6 SCC 1. 165
CHAPTER 5
CONCLUSION After ruling that breach of professional conduct by lawyers was unacceptable, the Supreme Court on Monday accepted apologies from a group of advocates to save them from undergoing six months in jail for abusing a Faridabad judge in open court in 1999. It was senior advocate Ram Jethmalani’s pleadings — the lawyers were sincere in their apologies to the high court as well as to the trial court judge and have undertaken never to repeat the conduct – that saved the erring advocates from prison term awarded to them by the Punjab and Haryana HC. Though a bench comprising Justices P Sathasivam and B S Chauhan accepted the apologies, it sounded a stern yet anguished warning to the lawyer community. It said lawyers have a social duty to adhere to exemplary conduct as their duties were as important as that of a judge. “Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even minor violation/misconduct militates against the fundamental foundation of the public justice system. An advocate should be dignified in his dealings to the court, to his fellow lawyers and to the litigants,” said Justice Sathasivam writing the judgment for the bench. The Faridabad lawyers must count themselves lucky for escaping punishment for their contemptuous act. For, the bench said that in contempt of court cases, “acceptance of an apology from a contemnor should only be a matter of exception and not that of a rule”. “A court, be that of a magistrate or the Supreme Court, is sacrosanct. The integrity and sanctity of an institution which has bestowed upon itself the responsibility of dispensing justice ought to be maintained. All functionaries, be it advocates, judges and the rest of the staff, ought to act in accordance with the morals and ethics,” the bench said.
BIBLIOGRAPHY BOOKS REFERRED –
Sanjeev Rao, Indian Advocates Act, 1971. M.P. Jain, Indian Legal History (Chap. On Legal Profession). Krishna Murthy Iyer’s Book on Advocacy. The Contempt of Courts Act, 1971. Journal of Bar Council of India.
URL
VISITED ON
1. http://flashnewstoday.com/index.php/sc-breach-of-professional-ethics-by-lawyersunacceptable/ 19/8/2011 2. http://www.thetop.in/news/breach-of-professional-ethics-by-lawyers-unacceptablesc 20/8/2011 3. http://onespot.wsj.com/indian-politics/2011/05/09/2b818/breach-of-professionalethics-by-lawyers 21/8/2011 4. http://lite.epaper.timesofindia.com/getpage.aspx? articles=yes&pageid=9&max=true&articleid=Ar00900§id=4edid=&edlabel=TOI CH&mydateHid=10-05-2011&pubname=Times+of+India 22/8/2011 5. http://www.vpmthane.org/law1/PrincArticles/Client_Counseling_for_Tomorrow.pdf
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