Whether suppression of material facts by Advocate amounts to his unbecoming conduct?

When the matter was listed before us today, we
repeatedly asked Shri Nedumpara, why he did not disclose to
us the order dated 22nd October, 2018 when the matter was
mentioned before us on 14th November, 2018. To this, there
was no answer. We then warned Shri Nedumpara that as a
counsel appearing before the Court, his primary duty is to
disclose all material facts to the Court before obtaining any
order from the Court. We have warned him that such
unbecoming conduct of an advocate who appears before this
Court, will be sternly dealt with should any future incident of a
like nature arise before this Court. We were inclined to impose
heavy costs but have not done so only because the appellant,
for whom Shri Nedumpara appears, already appears to be in
dire straits financially.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 26424 OF 2018

SHASHIKANT GANPAT JOGAL RABIN MAJUMDER 
Vs
THE STATE OF MAHARASHTRA 
Dated:November 19, 2018.

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Whether Advocate can claim fees on Percentage On Permanent Alimony Given To His Client?

It prima facie appears that the petitioner has

completely betrayed the trust reposed in him by the victim. He

has even gone to the extent of claiming percentage on the

permanent alimony given to the victim which is illegal. The

Bombay High Court in Re: K.L. Gauba reported in A.I.R. 1954

Bombay 478 held that fees conditional on the success of a case

and which gives the lawyer an interest in the subject matter 

tends to undermine the status of the profession. The same has

always been condemned as unworthy of the legal profession. If

an advocate has interest in success of litigation, he may tend to

depart from ethics. In the case of Mr. ‘G’., A Senior Advocate

of the Supreme Court reported in (1955) 1 Supreme Court

Reporter 490, the Hon’ble Supreme Court held that the claim of

an advocate based on a share in the subject matter is a

professional misconduct. In case of B. Sunitha -Vrs.- The

State of Telengana and Ors. reported in (2018) 69 Orissa

Criminal Reports (SC) 400, it is held that claim based on

percentage of subject matter in litigation cannot be the basis of a

complaint under section 138 of the N.I. Act.

 IN THE HIGH COURT OF ORISSA: CUTTACK

ABLAPL No. 5399 of 2017

An application under section 438 of the Code of Criminal

Procedure in connection with C.T. case No. 2702 of 2016 pending

in the Court of S.D.J.M., Bhubaneswar.

Sanjaya Narayan Sahoo  Vs  State of Odisha 

P R E S E N T:

 MR. JUSTICE S.K. SAHOO

 Date of Order: 01.05.2018

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Whether defendants can be permitted to withdraw admissions given in written statement on ground of misconduct of their Advocate?

The defendant Nos. 3 and 4 filed a written statement in civil suit No. 140/1992 on 08.01.1993. The amendment application was filed by them on 07.03.2006 i.e. more than 13 years after the written statement was filed. The delay is inordinate. But the delay in all cases, cannot be fatal because that party may be pleading new events or the new events may prompt the party to mould the defence. But the fact here is that, the application for amendment, is filed 13 years after the original written statement is filed. Now, the contents of the amendment application seeking amendment to the written statement, become very material. They show that the defendant No. 1 is the real brother of the defendant No. 3 and it is alleged that because of that, the defendant Nos. 3 and 4 had trust in defendant No. 1. It is specifically alleged that the defendant No. 1 approached the defendant Nos. 3 and 4 and told them that he would engage a Lawyer for them and the defendant Nos. 3 and 4 would have to sign the papers prepared by the Advocate. It is further alleged that they signed the blank Vakalatnama. Further, they contend that they were asked by the defendant No. 1 to come to the Court and sign the written statement before the Court Superintendent and accordingly, the defendant Nos. 3 and 4 went to the Court and signed the written statement, but they were not supplied the copies of the written statement and contents of the written statement, were not explained to them. The defendant Nos. 3 and 4 contend that they came to know of the contents of this written statement in civil suit No. 140/1992 and the wrong statements made therein only when they received a copy of the plaint in civil suit No. 112/2005. They contend that they, therefore, issued a notice to their Advocate Shri Joshi withdrawing the Vakalatnama. It is in this background that the amendment of the written statement was sought by the defendant Nos. 3 and 4. The learned Counsel for the respondent, made much ado about the conduct of the Lawyer appearing for the defendant Nos. 3 and 4 and he submits that the conduct of the said Lawyer, was unbecoming and he had drafted the written statement without letting the defendants know the contents. The conduct of the Lawyer here, in fact becomes immaterial. I would only say that prima facie, there is no substance in the contention about the conduct of the Advocate. Prima facie, it appears that both the defendants Nos. 3 and 4 are educated persons. They have signed in English. They had gone with their brother to the Court and had signed the written statement in presence of the Superintendent of the Court. Further, the contents of the amendment application, do not make any kind of allegations against the Lawyer, but all the allegations are made against the defendant No. 1, who is the brother of the defendant No. 3. The learned Counsel for the respondent, should not have, therefore, made an ado about the conduct of Shri Joshi Advocate. It is difficult to assume at this stage that the defendant Nos. 3 and 4 did not know the contents of the written statement for all these 13 years. I may mention further that last para of the old written statement,i.e. para 31 and the contents of that para, are very material. The defendant Nos. 3 and 4 have signed the written statement, which is below that last para. It is difficult to accept that without reading that last para, they had signed the written statement. I may observe here that the learned Judge of the Trial Court while deciding the suit, should not get influenced by these observations because these observations are prima facie observations. Be that as it may, the fact is that the defendants now want to resile from what is stated in the original written statement. We have seen that there is an inordinate delay of 13 years in filing an amendment application. It is difficult to accept prima facie that the defendants were unaware of the contents of the written statement and they came to know of it only on service of plaint in second suit. There is no other explanation in the amendment application for such delay and I do not find the explanation for delay as stated, to be very convincing. 

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition Nos. 691 of 2008 and 8 of 2009

Decided On: 18.03.2009

 Shri Armando Pereira Vs. Shri Jude D'Souza S/o John D'Souza and Ors.

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Whether Advocate can file complaint U/S 138 of NI Act for his fees based on percentage of decretal amount?

In the case on

hand, the complainant being a practising advocate,

has not proved the debt amount payable towards

him by the accused, who has engaged him as his

lawyer to conduct the case. The finding of the trial

Court that there is no debt or legally enforceable

liability' does not suffer from any infirmity

warranting interference.”

14. The Bombay High Court in Re: KL Gauba AIR 1954 Bom 4789 held that fees conditional on the success of a case and which gives the lawyer an interest in the subject matter tends to undermine the status of

the profession. The same has always been condemned as

unworthy of the legal profession. If an advocate has interest in

success of litigation, he may tend to depart from ethics.

15. In in the matter of Mr. G.: A Senior Advocate of the

Supreme Court  (1955) 1 SCR 490

, this Court held that the claim of an advocate

based on a share in the subject matter is a professional

misconduct.

16. In VC Rangadurai versus D. Gopalan  (1979) 1 SCC 308, para 3110

, it was observed that

relation between a lawyer and his client is highly fiduciary in

nature. The advocate is in the position of trust.

17. Rule 20 of Part VI, Chapter II, Section II of the Standard of

Professional Conduct and Etiquette reads as follows :

“An advocate shall not stipulate for a fee

contingent on the results of litigation or agree to

share the proceeds thereof.”

18. Thus, mere issuance of cheque by the client may not debar

him from contesting the liability. If liability is disputed, the

advocate has to independently prove the contract. Claim based on percentage of subject matter in litigation cannot be

 the basis of a complaint under Section 138 of the Act.

19. In view of the above, the claim of the respondent advocate

being against public policy and being an act of professional

misconduct, proceedings in the complaint filed by him have to be

held to be abuse of the process of law and have to be quashed.

20. We may note that after the hearing was concluded, learned

counsel for Respondent No.2 mentioned the matter to the effect

that Respondent No.2 wanted to withdraw the complaint. An

e-mail to this effect was also handed over to Court. The same has

been kept on the record. However, we did not permit this prayer.

Having committed a serious professional misconduct, the

respondent No.2 could not be allowed to avoid the adverse

consequences which he may suffer for his professional misconduct.

The issue of professional misconduct may be dealt with at

appropriate forum.

21. Thus, while proceedings against the appellant will stand

quashed, the issue of professional misconduct is left to be dealt

with at the appropriate forum. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2068 OF 2017

B. SUNITHA  Vs THE STATE OF TELENGANA & ANR. 

Dated:5TH DECEMBER, 2017.

ADARSH KUMAR GOEL, J.

Citation: 2018(4) MHLJ 27

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Whether Advocate swearing affidavit on behalf of client amounts to professional misconduct?

 The Supreme Court has referred to the provisions of Section 30 of the Advocates Act, 1961 and has held that the said section only entitles an advocate to practise the profession of law and not to substitute himself for his client. The filing of the writ petition in his own name was not a part of the professional obligation of the advocate and the High Court was, therefore, justified in dismissing the writ petition holding that the petitioner had no locus standi.

7. Section 30 of the Advocates Act, 1961 provides that every advocate whose name is entered in the State roll shall he entitled as of right to practise throughout the territory to which the Act apply. Thus, an advocate gets his right to practise in a Court only under Section 30 of the Act. 'Practise' in itself means to appear on behalf of his client before a Court or Tribunal in the best interest of his client. Practise, however, certainly does not give liberty to an advocate to identify himself with his client and step into the shoes of his client, so far as the rights of his client are concerned. Section 30 of the Act reads as under :

"30. Right of advocates to practise.-Subject to provisions of this Act, every advocate whose name is entered in the [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,-

(i) in all Courts including the Supreme Court;

(ii) before any Tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise."

8. I am, therefore, of the view that prima facie, the said Advocate, Sri Rohit Kumar Tyagi is guilty of professional misconduct in identifying himself with his client and filing an affidavit in support of the present second appeal, but considering that he himself expresses that he had acted under naivety and has submitted an unconditional apology, I do not propose to refer the matter to the Disciplinary Committee of the State Bar Council in the hope that this incident would in itself be a lesson enough for the said counsel to mend and mind his ways for future. For reasons aforesaid and in view of the law laid down by the Supreme Court in the case of Vinoy Kumar (supra), this second appeal is dismissed.

IN THE HIGH COURT OF ALLAHABAD

Second Appeal No. 501 of 2017

Decided On: 09.06.2017

Baljeet Singh Vs. Pratap Singh and Ors.

Hon'ble Judges/Coram:
B. Amit Sthalekar, J.
Citation: AIR 2017 ALL165

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Whether Advocate by stepping in shoes of client commits professional misconduct?

A counsel who appears though a Vakalatnama on behalf of his client cannot step into the shoes of that client. His identity must remain distinct from that of his client. It is one thing for an Advocate to file a personal affidavit in his client's case to explain the delay in filing the case if attributed to him but it is quite another thing for the advocate to file a petition or appeal or proceeding on affidavit swearing to facts which concern only his client more so when the advocate has appeared for the said client in an earlier proceeding in his capacity as the client's advocate and not as his witness. 
I am, therefore, of the view that pima facie, the said Advocate, Sri Rohit Kumar Tyagi is guilty of professional misconduct in identifying himself with his client and filing an affidavit in support of the present second appeal, but considering that he himself expresses that he had acted under naivety and has submitted an unconditional apology, I do not propose to refer the matter to the Disciplinary Committee of the State Bar Council in the hope that this incident would in itself be a lesson enough for the said counsel to mend and mind his ways for future.
HIGH COURT OF JUDICATURE AT ALLAHABAD 
SECOND APPEAL No. - 501 of 2017 

 Baljeet Singh V Pratap Singh & 3 Others 

Hon'ble B. Amit Sthalekar,J. 
Citation:AIR 2017 Allah165

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Whether mere negligence or error of judgment on part of Advocate will amount to professional misconduct?

The present appeal preferred under Section 38 of the
Advocates Act, 1961 (for brevity, 'the Act') assails the
correctness of the order dated 15.10.2006 passed by the
Disciplinary Committee of the Bar Council of India in BCI
TR Case No.138 of 2005 whereby the said authority has
found the appellant guilty of gross negligence in discharge of
his professional service to the client and accordingly
imposed the punishment of reprimand with a further
stipulation that he shall pay a sum of Rs.5,000/- to the Bar
Council of India and an equivalent amount to the
complainant within two weeks' time from the date of receipt
of the order failing which he would stand suspended from
practising for a period of six months.
2. As the factual score would unroll, the
respondent-complainant engaged the appellant as advocate
in respect of a matrimonial dispute and during the
pendency of the matrimonial case, the wife of the
respondent breathed her last due to kidney failure in the
year 2002. The appellant advised the
complainant-respondent that as the wife had expired, there
was no justification to prosecute any further the case for
divorce and it was advisable to withdraw the said litigation.
In the meantime, the respondent engaged him to file a
complaint under Section 138 of the Negotiable Instruments
Act, 1881 (for short, 'the N.I. Act') as a cheque issued by one
Ramachandran in favour of the respondent for a sum of
Rs.75,000/- (Rupees seventy five thousand only) had been
dishonoured. It is not in dispute that the appellant thought
it appropriate not to file a complaint under the N.I. Act but
he felt it apposite to file a complaint case before the
competent Magistrate under Section 420 of the Indian Penal
Code and accordingly he did so. As is demonstrable, the
learned Magistrate directed investigation to be conducted
under Section 156(3) of the Code of Criminal Procedure.
The eventual result of the said investigation has not been
brought on record.
It is urged by Mr. Parikh that when no finding is
returned that the cheque was kept back by the appellant,
there is no gross negligence. On the contrary, as he would
submit, it was handed over to the investigating agency
which was directed by learned Magistrate to carry out the
investigation under Section 156(3) CrPC. His only fault is
that he could not get the acknowledgment.
The Constitution Bench, in the matter of Mr. 'P' an
Advocate, (supra) has ruled that mere negligence or error of
judgment on the part of an advocate would not amount to
professional misconduct. It has been further held therein
that error of judgment cannot be completely eliminated in
all human affairs and mere negligence may not necessarily
show that the advocate who is guilty of it can be charged
with misconduct. The Constitution Bench, as is
demonstrable, has drawn a distinction between 'negligence'
and the 'gross negligence'. We think it appropriate to
reproduce the said passage. It is as follows:-
“But different considerations arise where the
negligence of the Advocate is gross. It may be that
before condemning an Advocate for misconduct,
courts are inclined to examine the question as to
whether such gross negligence involves moral
turpitude or delinquency. In dealing with this
aspect of the matter, however, it is of utmost
importance to remember that the expression
"moral turpitude or delinquency" is not to receive
a narrow construction. Wherever conduct proved
against an Advocate is contrary to honesty, or
opposed to good morals, or is unethical, it may be
safely held that it involves moral turpitude. A
willful and callous disregard for the interests of
the client may, in a proper case, be characterised
as conduct unbefitting an Advocate. In dealing
with matters of professional propriety, we cannot
ignore the fact that the profession of law is an
honourable profession and it occupies a place of
pride in the liberal professions of the country.
Any conduct which makes a person unworthy to
belong to the noble fraternity of lawyers or makes
an Advocate unfit to be entrusted with the
responsible task of looking after the interests of
the litigant, must be regarded as conduct
involving moral turpitude. The
Advocates-on-record like the other members of
the Bar Advocates are Officers of the Court and
the purity of the administration of justice
depends as much on the integrity of the Judges
as on the honesty of the Bar. That is why in
dealing with the question as to whether an
Advocate has rendered himself unfit to belong to
the brotherhood at the Bar, the expression "moral
turpitude or delinquency" is not to be construed
in an unduly narrow and restricted sense.”10
[Emphasis Supplied]
16. Ms. K. Sarda Devi, learned counsel for the respondent,
per contra, would urge that the case of the respondent is
squarely covered by the dictum of the Constitution Bench
inasmuch as the Disciplinary Committee of the Bar Council
of India has held that there was gross-negligence on the
part of the appellant.
17. On a studied scrutiny of the evidence in this context,
the factual score, the act of the present appellant cannot be
treated to be in the realm of gross negligence. It would be
only one of negligence. The tenor of the impugned order, as
we notice, puts the blame on the appellant on the
foundation that he had not received the acknowledgment.
He has offered an explanation that he had given the cheque
to the police. There has been no delineation in that regard.
That apart, there is no clear cut analysis on deliberation on
gross negligence by the advocate. The Disciplinary
Committee found the appellant guilty of gross-negligence as
he had failed to get the acknowledgment from the
complainant-respondent. The examples given by the
Constitution Bench are of different nature. In the obtaining
factual matrix, therefore, we are unable to accept the
conclusion arrived at by the Disciplinary Authority of the
Bar Council of India that the negligence is gross. Hence we
are impelled not to accept the submission advanced by
learned counsel for the respondent.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3860 OF 2007
T.A. KATHIRU KUNJU 
 V
JACOB MATHAI & ANR
Dated:February 16, 2017.
Citation: AIR 2017 SC 1041,(2017)5 SCC 755

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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

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Whether litigant can disown his advocate at any time and seek relief from court?

The   advocate   is   the   agent   of   the   party.   His   acts   and
statements, made within the limits of authority given to him,
are the acts and statements of the principal i.e. the party who
engaged him. It is true that in certain situations, the Court
may, in the interest of justice, set a side a dismissal order
or   an   ex­parte   decree   notwithstanding   the   negligence
and/or misdemeanour of the advocate where it finds that
the client was an innocent litigant but there is not such
absolute rule that a party can disown its advocate at any
time and seek relief. No such absolute immunity can be
recognised.   Such   an   absolute   rule   would   make   the
working   of   the   system   extremely   difficult.   The
observations made in 'Rafiq' must be understood in  the
facts   and   circumstances   of   that   case   and   cannot   be
understood   as   an   absolute   proposition.   As   we   have
mentioned hereinabove, this was an on­going suit posted
for   final   hearing   after   a   lapse   of   seven   years   of   its
institution. It was not a second appeal filed by a villager
residing away from the city, where the Court is located.
The defendant is also not a rustic ignorant villager but a
private limited company with its head­ office at Calcutta
itself and managed by educated businessmen who know
where   their   interest   lies.  It   is   evident   that   when   their
applications were not disposed of before taking up the suit
for final hewing they felt piqued and refused to appear before
the court. May be, it was part of  their delaying tactics as
alleged by the plaintiff. May be not. But one thing is clear
they   'chose   to   non­cooperate   with   the   court.   Having
adopted such a stand towards the Court, the defendant
has   no   right   to   ask   its   indulgence.   Putting   the   entire
blame upon the advocate and trying to make it out as if
they were totally unaware of the nature or significance of
the proceedings is a theory which cannot be accepted and

ought not to have been accepted. 
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5343 OF 2015
Mehendara P.Shah 
Vs.
Gurupreet Kamaljeet and others 

        CORAM  : R. G. KETKAR, J.
DATE       :  25th JUNE, 2015
Citation;2016(3) ALLMR142

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Whether Advocate can take brief from opposite party of his former client?

 Regulation 33 of Section II of Part VI of Bar Council of India Rules, which is said to have been violated by the Appellant, reads as under:

An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party.

 The spirit contained in the Rule 33, quoted above, is that where a lawyer has committed breach of his duty in respect of fiduciary obligation arising out of the relationship between himself and his client, he is guilty of misconduct of conflict of interest. The above rule restrains a lawyer from acting for another client on the ground of conflict of interest as the duty of the lawyer owed to his former client, not to act prejudicially to his interest, does not come to an end with the termination of the earlier case of his client with whom he had shared confidential information. The basis of Rule 33 is that there is likelihood or possibility of misuse of the instructions given to the lawyer by his former client.

 In V.C. Rangadurai v. D. Gopalan and Ors. MANU/SC/0029/1978 : (1979) 1 SCC 308, this Court has held that where advocate finds there would be conflict of interest in taking up a case of his client, he should not accept the brief of such client, against interest of his earlier client. Defining the word "misconduct", this Court in Noratanmal Chourasia v. M.R. Mulri and Anr.MANU/SC/0361/2004 : (2004) 5 SCC 689, has explained that misconduct is a transgression of some established and definite rule of action.

 In O.P. Sharma and Ors. v. High Court of Punjab and Haryana MANU/SC/0571/2011 : (2011) 6 SCC 86, this Court has made following observations in paragraphs 37 to 39 relating to ethical standards in the judicial system, and the same are reproduced as under:

37. 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 is ought to be maintained. All the functionaries, be it advocates, Judges and the rest of the staff ought to act in accordance with morals and ethics.
38. An advocate's duty is as important as that of a Judge. Advocates have a large responsibility towards the society. A client's relationship with his/her advocate is underlined by utmost trust. An advocate is expected to act with utmost sincerity and respect. In all professional functions, an advocate should be diligent and his conduct should also be diligent and should conform to the requirements of the law by which an advocate plays a vital role in the preservation of society and justice system. An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation/misconduct militates against the fundamental foundation of the public justice system.
39. An advocate should be dignified in his dealings to the court, to his fellow lawyers and to the litigants. He should have integrity in abundance and should never do anything that erodes his credibility. An advocate has a duty to enlighten and encourage the juniors in the profession. An ideal advocate should believe that the legal profession has an element of service also and associates with legal service activities. Most importantly, he should faithfully abide by the standards of professional conduct and etiquette prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules.

 In Dhanraj Singh Choudhary v. Nathulal Vishwakarma MANU/SC/1490/2011 : (2012) 1 SCC 741, discussing the nobility of the profession of lawyers, this Court has made following observations:

25. Any compromise with the law's nobility as a profession is bound to affect the faith of the people in the rule of law and, therefore, unprofessional conduct by an advocate has to be viewed seriously. A person practising law has an obligation to maintain probity and high standard of professional ethics and morality.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2581 and 2633 of 2005

Decided On: 17.03.2015

Chander Prakash Tyagi
Vs.
 Benarsi Das and Ors.

Coram:T.S. Thakur and Prafulla C. Pant, JJ.

Citation;AIR2015 SC 2297 , (2015 )8 SCC506

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Whether deterrent punishment should be imposed on Advocate for his Professional misconduct?

In light of the above legal position, we now consider the question of punishment. We have restored the finding of the Disciplinary Committee, BCUP viz., that the respondent-advocate was involved in a very serious professional misconduct by filing vakalatnamas without any authority and later on filing fictitious compromises. The professional misconduct committed by the respondent is extremely grave and serious. He has indulged in mischief-making. An advocate found guilty of having filed vakalatnamas without authority and then filing fictitious compromises without any authority deserves punishment commensurate with the degree of misconduct that meets the twin objectives – deterrence and correction. Fraudulent conduct of a lawyer cannot be viewed leniently lest the interest of the administration of justice and the highest traditions of the Bar may become casualty. By showing undue sympathy and leniency in a matter such as this where the advocate has been found guilty of grave and serious professional misconduct, the purity and dignity of the legal profession will be compromised. Any compromise with the purity, dignity and nobility of the legal profession is surely bound to affect the faith and respect of the people in the rule of law. Moreover, the respondent-advocate 

Supreme Court of India

Narain Pandey vs Pannalal Pandey on 10 December, 2012

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Difference between giving of improper legal advice and giving of wrong legal advice by Advocate

There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct. In re A Vakil, ILR [1925] 49 Mad. 523. Coutts Trotter, C.J. followed the decision in re G. Mayor Cooke [1889] 33 Sol. Jour. 397 and said that:

Negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no suggestion here, and we are therefore able to say that there is no case to investigate, and that no reflection adverse to his professional honour rests upon Mr. M.',

Supreme Court of India

Pandurang Dattatraya Khandekar vs Bar Council Of Maharashtra, ... on 20 October, 1983

Equivalent citations: AIR 1984 SC 110 a, 1983 (2) SCALE 495, (1984) 2 SCC 556

Author: A Sen

Bench: A Sen, E Venkataramiah, R Mishra

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