Friday, 22 July 2016

CIC to Bar council of delhi: Publish cases of professional misconduct of Advocates

It is important to remember words of Krishna Iyer, “indeed, the monopoly conferred on the
legal profession by Parliament is coupled with a responsibility ­ a responsibility towards the
people, especially the poor” and that responsibility has to be practically visible in functioning of
every advocate. If not people should know action against him. Right to know of the people
arises out of this responsibility of Bar Council.
16.   Section 4(1)(d) of RTI Act, mandates the public authority to “provide reasons for its
administrative or quasi­judicial decisions to affected persons”. Bar Council should understand
the purport of above referred judicial pronouncements is properly understood, the Bar Council
has to publish these reports because generally entire people are positively affected by the
good conduct to some extent and harmfully affected by misconduct of the advocates, and if the
Bar Council punishes them or brings out genuineness of service, it will neutralize the impact.
For that purposes it has to publish the reports of the disciplinary proceedings. 
17.    The Commission agrees with the justifiable contention of the appellant and directs the
Bar Council of Delhi to report/publish the cases of professional misconduct, both proved and
not proved, at regular intervals or as and when the decision was taken in compliance of
Section 4 (1) of RTI Act in their official website or journal or by any other means of publication
convenient to it. Commission also direct the PIO to furnish para wise information to the
appellant within 15 days of receipt of this Order.
CENTRAL INFORMATION COMMISSION

Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
Information Commissioner
CIC/SA/A/2016/000381
Tapan Chaudhary v. Bar Council of Delhi
 Decided on: 20­-07­-2016


FACTS: 
2.     Appellant had sought information regarding the order passed in Complaint Case No.
53/2014 pronounced on 8.05.2015 by the Bar Council of Delhi wherein Advocates as Directors
of the company have been allowed to file civil suits. He wanted to know whether such an Order
could be reported in print and broadcast media. Having received no information, appellant filed
First and then Second Appeal. 
Analysis and Decision: 
3.   The appellant claimed that the people in general have a right to know the judgments given
by  the   adjudicating   wing  of   Bar   Council   of   India   to  uphold  the   ethical   and   professional
standards of the advocates. His question was why the bar council decisions on the complaints
against misconduct of advocates should not be reported. He contended it is right to information
of the citizens under RTI Act and it is also mandatory u/s 4(1)(b) of the RTI Act for Bar Council
of India to publish the same. 
4.       Whatever may be the present day perception of the clients or other public about the
lawyering, it is basically a noble profession rendering noble service. It is neither business nor
commerce. Over centuries, strong ethics for the advocates have been developed in civilised
nations  imposing   higher   duties   on  the  Bar   Councils  to  enforce   those   duties.   To  protect
independence of the advocacy profession, the law created an autonomous and independent
body called Bar Council of India, which need to receive and hear the complaints of the people
against the advocates and discipline them. Bar Council of India Rules of Professional Conduct
starts with the following sentences: “Advocates, in addition to being professionals, are also
officers of the courts and play a vital role in the administration of justice...Accordingly, the set
of rules that govern their professional conduct arise out of the duty that they owe the court, the
client, their opponents and other advocates”.
5.   As rightly pointed out by Legendary Justice Krishna Iyer, “the Bar is not a private guild, like
that of ‘barbers, butchers and candlestick­makers’  but, by bold contrast, a public institution
committed to public justice and pro bono public service”.  Advocates being officers of court
and expected to assist the courts to come to right conclusions in the open trial, the decisions
given in complaints against them are not their private affairs. They are issues of public interest,
and public should know in their interest.  The advocate’s position towards the litigants is well
described by the Supreme Court in Pandurang Dattatraya Khandekar v. Bar Council of
Maharashtra Bombay & Others [1984 (2) SCC 556] as follows: 
An advocate stands in a loco parentis towards the litigants. Therefore, he is expected to follow
norms of professional ethics and try to protect the interests of his client in relation to whom he
occupies a position of trust. Counsel's paramount duty is to the client. The client is entitled to
receive disinterested, sincere and honest treatment.
6.     Preamble of CHAPTER – II, Standards of Professional Conduct and Etiquette (Rules
under Section 49 (1) (c) of the Act read with the Proviso thereto) says:  
An advocate shall, at all times, comport himself in a manner befitting his status as an officer
of the Court, a privileged member of the community, and a gentleman, bearing in mind that
what may be lawful and moral for a person who is not a member of the Bar, or for a member
of the Bar in his non­professional capacity may still be improper for an advocate. Without
prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the
interests of his client and in his conduct conform to the rules hereinafter mentioned both in
letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette
adopted as general guides; yet the specific mention thereof shall not be construed as a denial
of the existence of others equally imperative though not specifically mentioned.
People   in   general   has   a   right   to  know  whether   these   professional   standards   are   being
maintained and if not and the action taken by the professional body. 
7.         Any   dishonesty   towards   him,   cheating   or   making   undue   profits   from   client   by
misrepresentation is considered misconduct. Section 35 prescribes how misconduct has to be
punished: 
Punishment   of   advocates   for   misconduct.—(1)   Where   on   receipt   of   a   complaint   or
otherwise a State Bar Council has reason to believe that any advocate on its roll has been
guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary
committee. 1[(1A) The State Bar Council may, either of its own motion or on application made
to   it   by   any   person   interested,   withdraw   a   proceeding   pending   before   its   disciplinary
committee and direct the inquiry to be made by any other disciplinary committee of that State
Bar Council.] (2) The disciplinary committee of a State Bar Council 2[***] shall fix a date for
the   hearing   of   the   case   and   shall   cause   a   notice   thereof   to   be   given   to   the   advocate
concerned and to the Advocate­General of the State. (3) The disciplinary committee of a State
Bar Council after giving the advocate concerned and the Advocate­General an opportunity of
being heard, may make any of the following orders, namely:— (a) dismiss the complaint or,
where the proceedings were initiated at the instance of the State Bar Council, direct that the
proceedings be filed; (b) reprimand the advocate; (c) suspend the advocate from practice for
such period as it may deem fit; (d) remove the name of the advocate from the State roll of
advocates. (4) Where an advocate is suspended from practice under clause (c) of sub­section
, he shall, during the period of suspension, be debarred from practising in any court or
before any authority or person in India. (5) Where any notice is issued to the AdvocateGeneral
under sub­section (2), the Advocate­General may appear before the disciplinary
committee of the State Bar Council either in person or through any advocate appearing on his
behalf. 
8.   Who is the person aggrieved in the complaint against advocate before Bar Council? In fact
it is not an ordinary suit before a civil court. If the client is aggrieved by the negligence or
misconduct of the Advocate leading to deficiency in service, he has a remedy in Consumer
Forum. There only aggrieved person has to file petition for remedy. But the before Bar Council,
person complaining is not seeking any remedy for himself, but trying to point out misconduct
and asking the professional body to establish and protect the standards in the profession. The
complainant is in fact serving the interests of profession by pointing out wrongdoers. If proved,
his complaint  will  help the  Bar  Council  to remove  the wrongful  elements and  clean  the
profession. Hence it is not a dispute between two persons for some benefit or penalty. The
people in general and advocates in particular should know how misconduct will be dealt with. 
9.   In Bar Council of Maharashtra v. M.V. Dabholkar, (AIR 1976 SC 242) a seven­Judge
Bench of Supreme Court was hearing an appeal filed under Section 38 of the Advocates Act
1961 by the Bar Council of Maharashtra.  In this case main controversy centred around the
meaning of the expression “person aggrieved”.  V.R. Krishna Iyer, J, saying Bar is not a private
guild, advising not to stoop to conquer, analysed role of advocate and Bar Council, in his own
style.  
“ ..... The grant of a monopoly licence to practice law is based on three assumptions: (1)
There is a socially useful function for the lawyer to perform, (2) The lawyer is a professional
person who will perform that function, and (3) His performance as a professional person is
regulated by himself not more formally, by the profession as a whole. The central function that
the legal profession must perform is nothing less than the administration of justice (‘The
Practice of Law is a Public Utility’ — ‘The Lawyer, The Public and Professional Responsibility’
by F. Raymond Marks et al — Chicago American Bar Foundation, 1972, p. 288­289). A glance
at the functions of the Bar Council, and it will be apparent that a rainbow of public utility
duties, including legal aid to the poor, is cast on these bodies in the national hope that the
members   of   this  monopoly   will  serve  society  and  keep  to  canons  of  ethics  befitting  an
honourable order. If pathological cases of member misbehaviour occur, the reputation and
credibility of the Bar suffer a mayhem and who, but the Bar Council, is more concerned with
and sensitive to this potential disrepute the few black sheep bring about? The official heads of
the Bar i.e. the Attorney­General and the Advocates­General too are distressed if a lawyer
“stoops to conquer” by resort to soliciting, touting and other corrupt practices.”
10.    Justice V R Krishna Iyer in another case V.C. Rangadurai v. D. Gopalan and Others
[AIR 1979 SC 281], a majority judgment in an appeal filed under Section 38 of the 1961 Act
observed: 
"4. Law is a noble profession, true; but it is also an elitist profession. Its ethics, in practice, (not
in theory, though) leave much to be desired, if viewed as a profession for the people. When
the Constitution under Article 19 enables professional expertise to enjoy a privilege and the
Advocates Act confers a monopoly, the goal is not assured income but commitment to the
people ­ the common people whose hunger, privation and hamstrung human rights need the
advocacy   of   the   profession   to   change   the   existing   order   into   a   Human   Tomorrow.   This
desideratum gives the clue to the direction of the penance of a deviant geared to correction.
Serve the people free and expiate your sin, is the hint. 
5. Law's nobility as a profession lasts only so long as the members maintain their commitment
to  integrity  and  service  to  the  community.   Indeed,  the   monopoly  conferred  on  the  legal
profession by Parliament is coupled with a responsibility ­ a responsibility towards the people,
especially the poor. Viewed from this angle, every delinquent who deceives his common client
deserves to be frowned upon.
11.  The Rule 10 of Bar Council of India says­“An advocate who is a director of a company
should not accept brief from a company of which he is a director as there is pecuniary interest.
The pre condition has been changed to proving pecuniary interest and in case no pecuniary
interest is proven an advocate can accept brief from a company of which he is a director. The
fact that an Advocate is a Director of a company in itself proves there is pecuniary interest and
therefore is restrained from accepting brief of its own company. Otherwise this would amount
to under the table dealing and corruption.”
12. Where the profession is a public service, the place of work is institution of securing justice,
and expected result is public justice, the decision given in complaint proceedings should not be
hidden from the public. 
13.  Freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution
of India is held to have included right to information, which was codified and consolidated in
Right to Information Act, 2005. Client  who complained in particular and all clients in general
do have right to information about decisions of the Bar Council on complaints so that they can
properly exercise their expression in taking cases to an advocate of his choice, after he
exercised that choice with full knowledge about what practical ethics are.  Not only that, young
advocates or fresh law graduates or students of law should know what ethics are, how an
advocate should conduct himself and what misconduct is. Hence there is a necessity to report
and media to publish. It is in public interest. 
14.  Appellant’s demand for a direction from the Commission to the bar council to update their
decisions on professional misconduct of bar members from time to time is justified. The people
or clients have a right to know about the conduct of their counsel, whom they are paying fees
with   an   expectation   for   justice.     Advocacy   is   a   service   which   comes   under   Consumer
Protection Act.  The Bar Council of Delhi is a public authority, which has a responsibility of
protecting   the   ethical   standards   of   the   advocates.     If   a   client   complains   against   the
professional   misconduct   of   advocate,   the   bar   council   has   a   duty   to   examine   it   and   to
pronounce its decision not just to the complainant.  Such a decision has to be in there public
domain.  Transparency requirement does not allow Bar Council of Delhi to keep its decisions
secret.  Any public authority has a mandatory duty to disclose reasons for its quasi judicial or
administrative decisions to the affected persons as per Section 4(1)(c) of RTI Act voluntarily.
Bar Council of Delhi being a public body has an obligation to report its decisions along with
reasons. Every professional body like Medical Council of India, Press Council of India and Bar
Council of India has to report its decisions.
15. It is important to remember words of Krishna Iyer, “indeed, the monopoly conferred on the
legal profession by Parliament is coupled with a responsibility ­ a responsibility towards the
people, especially the poor” and that responsibility has to be practically visible in functioning of
every advocate. If not people should know action against him. Right to know of the people
arises out of this responsibility of Bar Council.
16.   Section 4(1)(d) of RTI Act, mandates the public authority to “provide reasons for its
administrative or quasi­judicial decisions to affected persons”. Bar Council should understand
the purport of above referred judicial pronouncements is properly understood, the Bar Council
has to publish these reports because generally entire people are positively affected by the
good conduct to some extent and harmfully affected by misconduct of the advocates, and if the
Bar Council punishes them or brings out genuineness of service, it will neutralize the impact.
For that purposes it has to publish the reports of the disciplinary proceedings. 
17.    The Commission agrees with the justifiable contention of the appellant and directs the
Bar Council of Delhi to report/publish the cases of professional misconduct, both proved and
not proved, at regular intervals or as and when the decision was taken in compliance of
Section 4 (1) of RTI Act in their official website or journal or by any other means of publication
convenient to it. Commission also direct the PIO to furnish para wise information to the
appellant within 15 days of receipt of this Order. With this observation, the present appeal is
disposed of.
 (M. Sridhar Acharyulu)
Information Commissioner 

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