DUTIES TO THE CLIENTS DUTIES TO THE CLIENTS & CaseStudy of & CaseStudy of Shambhu Ram Yadav Shambhu Ram Yadav v. v. Hanuman Das Khay Hanuman Das Khay Submitted By: Submitted By: Benant Noor Singh Benant Noor Singh Roll No. 19/11 Roll No. 19/11 Class: BA.LLB(H) Class: BA.LLB(H) Submitted to Submitted to Ms. Harman Shergill Ms. Harman Shergill University Institute of Legal Studies University Institute of Legal Studies Panjab University, Chandigarh Panjab University, Chandigarh
Transcript
DUTIES TO THE CLIENTSDUTIES TO THE CLIENTS
& CaseStudy of & CaseStudy of Shambhu Ram YadavShambhu Ram Yadav
v. v. Hanuman Das KhatryHanuman Das Khatry
Submitted By:Submitted By:Benant Noor SinghBenant Noor SinghRoll No. 19/11Roll No. 19/11Class: BA.LLB(H)Class: BA.LLB(H)
Submitted toSubmitted toMs. Harman Shergill Ms. Harman Shergill University Institute of Legal StudiesUniversity Institute of Legal StudiesPanjab University, ChandigarhPanjab University, Chandigarh
Table of ContentsTable of Authorities...................................................................................................................ii
Bar Council Of India Rules.................................................................... 6, 8, 9, 10, 11, 12, 13
Constitution of India 1949......................................................................................................8
ii
Acknowledgment
At the very outset I owe my gratitude for the completion of this project to none
else but 'Almighty', Who I believe is the spiritual force behind all creation.
I owe the perseverance required to accomplish this project to my teacher Madam
Harman Shergill whose assistance and persuasion resulted in this fruitful
endeavor. It was she who directed my rambling thoughts. I must admit it would
be impossible for me to reach my destination without her support.
My parents blessing cannot be expressed in words and my fellow friends who
gave me strong moral support during some critical moments of failure and
frustration from the beginning to end of this project.
I also owe my gratitude to UILS library.
Benant Noor Singh
iii
Introduction One's profession is not an individual right. Profession involves more than one person and is
adorned with responsibilities. The intensity of responsibilities vary with the nature of
profession one is involved in. When there is a grave stakeholder involved in the profession,
the responsibilities become higher. The life of a practicing lawyer can be distinguished form
other professions in more than one way. The way he conducts himself inside as well as
outside the court determines his personality.
Legal Ethics & Significance
The word ethics is derived from the Greek word ethos (character), and from the Latin word
mores (customs). Together they combine to define how individuals choose to interact with one
another. In philosophy, ethics defines what is good for the individual and for society and
establishes the nature of duties that people owe themselves and one another. The following
items are characteristics of ethics:
• Ethics involves learning what is right and wrong, and then doing the right thing.
• Most ethical decisions have extended consequences.
• Most ethical decisions have multiple alternatives.
• Most ethical decisions have mixed outcomes.
• Most ethical decisions have uncertain consequences.
• Most ethical decisions have personal implications.
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.
Advocates have the dual responsibility of upholding the interests of the client fearlessly while
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conducting themselves as officers of the court. Accordingly, they are expected to adhere to the
highest standards of probity and honor. An advocate’s conduct should reflect their privileged
position in society which derives from the nobility of this profession. In a nut shell, if you are
an advocate your service to the common man should be compassionate, moral and lawful. The
rules mentioned in the Chapter II, Part IV of the Bar Council of India Rules on standards of
professional conduct and etiquette shall be adopted as a guide for all advocates in conducting
matters related to law.
The relationship between lawyers with his client is in the nature of fiduciary. Hence, trust
building is a significant part of legal profession. Lawyers are often tainted with allegations of
corruptions, cruelty and are marked as untrustworthy. The Indian judiciary has been
struggling for sometime to make legal profession blemish free. Through various provisions in
the enactments and judicial decisions, lawyers charged with misconducts are brought into
books. The Advocates Act, 1961 through Section 35 provides that on finding any advocate
guilty of professional misconduct, the State Bar Council can refer the case to the Disciplinary
Committee who would take actions accordingly. It is heartening to observe that this provision
has been availed in a number of instances to provide relief to the harassed clients. Though the
number of complaints brought into light is few compared to the instances of misconducts, yet
one can be optimistic about the outcomes of such complaints.
This project report deals with the Duties that an Advocate owes to his Client and a case study
of Shambhu Ram Yadav v. Hanuman Das Khatry where the Apex Court permanently
suspended the accused lawyer for tainting the legal profession in spite of the wisdom and
experiences gained over the years.
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Areas of Application
1. Conflict of Interest
A lawyer is at times faced with the question of whether to represent two or more
clients whose interest’s conflict. Quite aside from his ethical obligations, the legal
systems of the world generally prohibit a lawyer from representing a client whose
interests conflict with those of another, unless both consent.
2. Confidential Communication
In Anglo-American countries judicial decisions, legislation, and legal ethics generally
forbid a lawyer to testify about confidential communications between himself and his
client unless the client consents. Provisions regarding confidentiality are also found in
such diverse legal systems as those of Japan, Germany, and Russia. In countries in
which the attorney’s obligation to protect state interests is given relatively greater
emphasis, there may be a duty to disclose information when it is deemed to be to the
state’s advantage.
3. Advertising and solicitation
Traditionally, advertising by lawyers was forbidden almost everywhere. It was a
longstanding principle of legal ethics in Anglo-American countries that an attorney
must not seek professional employment through advertising or solicitation, direct or
indirect. The reasons commonly given were that seeking employment through these
means lowers the tone of the profession, that it leads to extravagant claims by
attorneys and to unrealistic expectations on the part of clients, and that it is
inconsistent with the professional relationship that should exist between attorney and
client. A more basic reason appears to have been the social necessity of restraining the
motive of personal gain and of stressing the objective of service.
3
4. Fees
In principle, attorneys are ethically enjoined to keep their fees reasonable, neither too
high nor too low. Attempts to control fees have included the passage of general
statutes designed to regulate compensation for legal services of all sorts, as in
Germany; the imposition of fees by courts in contentious matters, as in England and
Wales; and the establishment of advisory fee schedules by the legal profession, as in
Canada, France, Spain, and Japan. In the United States, local bar associations
sometimes enforced minimum fee schedules through disciplinary proceedings;
however, the U.S. Supreme Court held in 1975 that such practices violated antitrust
laws.
5. Criminal cases
Both the prosecution and the defense of criminal cases raise special ethical issues. The
prosecutor represents the state, and the state has an interest not only in convicting the
guilty but also in acquitting the innocent. The prosecutor also has an ethical and, in
considerable measure, a legal duty to disclose to the defense any information known to
him and unknown to the defense that might exonerate the defendant or mitigate the
punishment. He must not employ trial tactics that may lead to unfair convictions, nor
should he prosecute merely to enhance his political prospects.
6. Globalization
Although economic globalization has contributed in important ways to the worldwide
growth of the legal profession, it has also created the potential for conflict between
different ethical traditions. In Europe, for example, standards of confidentiality for in-
house counsel differ from those observed by independent attorneys, a fact that has
created difficulties for some U.S.-trained lawyers working for European firms. In
China the rapidly increasing market for legal services has attracted legal professionals
from democratic countries, which generally do not share the Chinese conception of an
attorney’s public obligations. It is likely that these kinds of challenges will be
intensified by the continuing liberalization of the international legal market and by the
development of technologies that enable lawyers to give advice from their offices to
clients in distant and very different jurisdictions.
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Ethics Of Legal Profession
Meaning, Nature and Need
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. It is defined as the term given to
the code that is set up by the legal professionals that details their moral and professional
duties to clients.1
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.
The Bar Council of India is a statutory body that regulates and represents the Indian bar. It
was created by Parliament under the Advocates Act, 19612. It prescribes standards of
professional conduct and etiquette and exercises disciplinary jurisdiction. It sets standards for
legal education3 and grants recognition to Universities whose degree in will serve as a
qualification for students to enroll themselves as advocates upon graduation.4
1 Black Law Dictionary 2ndedn2 Advocates Act 1961 s 43 Ibid s 49(d)4 Supra 2 Ch III
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Professional Ethics
Rules for conduct of an advocate
The Bar Council of India has been empowered to make rules so as to prescribe the standards
of professional conduct and etiquette to be observed by the advocates5. It has been made clear
that such rules shall have applicability only when they are approved by the Chief Justice of
India.6 It has been made clear that any rules made in relation to the standards of professional
conduct and etiquette to be observed by the advocates and in force before the commencement
of the Advocates (Amendment) Act, 1973, shall continue in force, until altered or repealed or
amended in accordance with the provisions of this act.
Chapter II of part VI of the rules framed by the Bar Council of India deals with the standards
of professional conduct and etiquette. It contains several rules which lay down the standards
of professional conduct and etiquette. These rules specify the duties of an advocate to the
Court, client, opponent and colleagues, etc.
The rules mentioned in chapter II of part VI of the rules of Bar Council of India include
various duties of an advocate in relation to the people he has to come across in his day to day
profession.
The duties given in the above said chapter include :
a) Duties to the Court7
b) Duty to the Client8
c) Duty to the Opponent9
d) Duty to Colleagues10
The Duties of an advocate towards his client shall be discussed in detail in this project.
5 Supra 2 s 49(l)(c)6 Ibid s 38 Proviso ins. by Act 60 of 19737 BCI Rules 2.6.3.18 Ibid 2.6.3.29 Supra 7 2.6.3.310 Supra 7 2.6.3.4
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Relationship between a Lawyer and his Client
In India, the counsel’s relations with his client are primarily a matter of contract. The relation
is in the nature of agent and principal. The agreement determines to what extent the counsel
can bind his clients by his acts and statements; what shall be its remuneration, whether he will
have a lien on his client’s property, etc. It is evident, however, that as counsel is also conform
to the ethical code prescribed for him by law and usage, he cannot be a mere agent or
mouthpiece of his clients to carry out his biddings.
A Fiduciary relationship
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 honorable means without
regard to any unpleasant consequences to himself or any other person. Therefore, he has a
duty to fulfill all his obligations towards his client with care and act in good faith. Since the
client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act
according to the principles of uberrima fides i.e. the utmost good faith, integrity, fairness and
loyalty.11
Justice A.P. Sen outlined the importance of the relationship of an advocate with his client in
the following words:
“Nothing should be done by any member of the legal fraternity which might
tend to lessen in any degree the confidence of the public in the fidelity, honesty
and integrity of the profession. Lord Brougham, then aged eighty-six, said in a
speech, in 1864, that the first great quality of an advocate was ‘to reckon
everything subordinate to the interests of his client’. What he said in 1864
about ‘the paramountcy of the client's interest’, is equally true today. The
relation between a lawyer and his client is highly fiduciary in its nature and of
a very delicate, exacting, and confidential character requiring a high degree of
fidelity and good faith. It is purely a personal relationship, involving the
highest personal trust and confidence which cannot be delegated without
11 Kokkanda B. Poondacha v K.D. Ganapathi [2011] 12 SCC 600 [12]
7
consent. A lawyer when entrusted with a brief, is expected to follow the norms
of professional ethics and try to protect the interests of his clients, in relation to
whom he occupies a position of trust.”12
What are the duties of an Advocate towards his Client?
1. Duty to accept briefs and charge reasonable fees
An advocate is bound to accept any brief in the courts or tribunals or before any other
authority in or before which he proposes to practice.13 Special circumstances may justify his
refusal to accept a particular brief.
An advocate must charge a fee consistent with his standing at the bar and the nature of the
case. The Constitution of India makes provision for the high courts to settle the table of fees
payable to advocates practicing before them.14
An advocate must not stipulate a fee contingent on the results of litigation, or agree to share
the proceeds of litigation.15 This is because giving the lawyer an interest in the subject matter
of the suit is against professional ethics and violative of public policy.
If he withdraws from a case, the advocate must refund any part of the fee that was not earned.
However, once an advocate has accepted a case, he must under no circumstances withdraw
from the same without sufficient cause and without giving reasonable and sufficient notice to
the client.16
An advocate should not trade or agree to receive any share or interest in any actionable claim.
Nothing in this rule shall apply to stock, shares and debentures of government securities, or to
any instruments, which are, for the time being, by law or custom, negotiable or to any
12 VC Rangadurai v D Gopalan [1979] 1 SCC 308 [31]13 Supra 7 2.6.3.2(11)14 Constitution of India 1949 a 227(3)15 Supra 7 2.6.3.2(20)16 Supra 7 2.6.3.2(12)
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mercantile document of title to goods.17
2. Duty to make full and frank disclosure
An advocate must, at the commencement of his engagement and during its
continuation, make all full and frank disclosures to his client relating to his connection with
the parties, and of any interest he may have in and, or about the controversy, as is likely to
affect his client's judgment in engaging him on continuing the engagement.18
3. Duty to ensure no conflict of interest
An advocate has a duty not to accept any engagement in a trial in which he may have
to give testimony,19 although there is no rule of evidence disqualifying counsel from giving
evidence in a suit in which he is engaged. An advocate is not entitled to act in a professional
capacity as well as a constituted attorney of a party in the same matter or cause. If a person
appoints a firm of lawyers as his advocates, none of the partners of the lawyers' firm can act
as recognized agents in pursuance of a power of attorney concerning the same cause.
An advocate who has at any time advised a party in connection with the institution of a suit,
appeal or other matter or has drawn pleadings or acted for a party, must not act, appear or
plead for the opposite party20, unless the express consent given of all concerned is obtained,
after full disclosure of facts.
In case an advocate feels that there will be conflict of interest in filing a case on behalf of his
client, his duty is to advise his client to engage some other advocate.
The Supreme Court in this regard observed:
“It is not in accordance with professional etiquette for an advocate while retained by one party
to accept the brief of the other. It is unprofessional to represent conflicting interests except by
17 Supra 7 2.6.3.2(21)18 Supra 7 2.6.3.2(14)19 Supra 7 2.6.3.2(13)20 Supra 7 2.6.3.2(33)
9
express consent given by all concerned after a full disclosure of the facts.”21
4. Duty of care to client
An advocate should ensure that the interests of the client are not in any manner hurt by
his acts or omissions. He must also defend a person accused of a crime, regardless of his
personal opinion as to the guilt of the accused and must not abuse or take advantage of the
confidence reposed in him by the client.22
There is a duty of care that a counsel owes to his party which clearly extends to ensuring that
the interests of his party are not in any manner hurt by his doing what should not have been
done or omitting to do, what is required and necessary in the discharge of his duty as
counsel.23 Breach of such duty cannot, but lay counsel open to a charge of negligence which is
actionable too, as held by the Supreme Court in M. Veerappa v. Evelyn Sequeira24
When counsel does not inform the client of the subsequent proceeding of the case, he
commits a breach of this duty and is therefore liable for professional negligence.
5. Duty to maintain confidentiality
The relation between a lawyer and a client involves the highest degree of personal
trust and confidence. The Indian Evidence Act specifically provides that no lawyer is any time
permitted, to disclose any communication made between his client and himself during the
course of the engagement unless it is with his client's express permission.25
6. Duty to act only on clients instructions
An advocate should not act on the instructions of any person other than his client or
21 Chandra Shekhar Soni v Bar Council of Rajasthan [1983] 4 SCC 255 [2]; Supra 12 [30]22 Supra 7 2.6.3.2(15)23 Manjit Kaur v Deol Bus Service Ltd AIR 1989 P&H 183 [9]24 [1988] 1 SCC 556; AIR [1988] SC 50625 Indian Evidence Act 1872 s 126; Supra 7 2.6.3.2(17)
10
the client’s authorized agent.26
The engagement of a lawyer comes to an end when the client becomes unable to give
instructions because of his mental illness or other reasons.An advocate acting on the
instructions of an agent and not the instructions of the client, commits professional
misconduct.
7. Duty to the law
Though a lawyer has the duty to represent his client to the best of his ability, he should
not neglect the fact that his loyalty is to the law. An advocate must also not be a party to
fomenting of litigation.27 He should not suppress facts or conduct the prosecution that leads to
conviction of the innocent.28
8. Duty relating to Property in dispute
An advocate should not by any means bid for, or purchase, either in his own name or
in any other name, for his own benefit or for the benefit of any other person, any property sold
in any legal proceeding in which he was in any way professionally engaged. However, it does
not prevent an advocate from bidding for or purchasing for his client any property on behalf
of the client provided the Advocate is expressly authorized in writing in this behalf.29
An advocate should not by any means bid in court auction or acquire by way of sale, gift,
exchange or any other mode of transfer (either in his own name or in any other name for his
own benefit or for the benefit of any other person), any property which is the subject matter of
any suit, appeal or other proceedings in which he is in any way professionally engaged.30
Supreme court examined the conduct of advocate P.D. Gupta in buying the property, the
subject-matter of litigation between the parties, from his client. He sold the property to a third
person, made profit and created more complications in the pending suit. P.D. Gupta purchased
26 Supra 7 2.6.3.2(19)27 Supra 7 2.6.3.2(18)28 Supra 7 2.6.3.2(16)29 Supra 7 2.6.3.2(22)30 Supra 7 2.6.3.2(22A)
11
the properties which were the subject-matter of the dispute for himself and also for his son-in-
law at almost throw-away prices and thus he himself became a party to the litigation.
The Supreme Court observed:
“We are concerned with the professional conduct of P.D. Gupta as a lawyer conducting the
case for his client. A lawyer owes a duty to be fair not only to his client but also to the court as
well as to the opposite party in the conduct of the case. Here, P.D. Gupta in buying the
property has in effect subverted the process of justice. His action has raised serious questions
about his fairness in the conduct of the trial touching his professional conduct as an advocate.
By his action he has brought the process of administration of justice into disrepute.”31
The Supreme Court concluded and held P.D. Gupta guilty of misconduct
9. Duty relating to Fees and amounts
a) An advocate should not adjust fee payable to him by his client against his own
personal liability to the client, which does not arise in the course of his
employment as an advocate.32
b) Proper accounts of the clients’ money entrusted to him should be maintained . The
accounts should show the amounts received from the client or on his behalf. The
account should show along with the expenses incurred for him and the deductions
made on account of fees with respective dates and all other necessary particulars.33
c) It is his duty to mention in his accounts whether any money received by him from
the client are on account of fees or expenses during the course of any proceeding
or opinion. He shall not divert any part of the amounts received for expenses as
fees without written instruction from the client.34
d) Client should be intimated as and when amount is received or given to advocate on
behalf of his client.35
e) An advocate shall after the termination of proceedings, be at liberty to adjust the
fees due to him from the account of the client. The balance in the account can be
the amount paid by the client or an amount that has come in that proceeding. Any
31 P.D. Gupta v Ram Murti [1997] 7 SCC 147 p15432 Supra 7 2.6.3.2(23)33 Supra 7 2.6.3.2(25)34 Supra 7 2.6.3.2(26)35 Supra 7 2.6.3.2(27)
12
amount left after the deduction of the fees and expenses from the account must be
returned to the client.36
f) An advocate must provide the client with the copy of the client’s account
maintained by him on demand, provided that the necessary copying charge is
paid.37
g) An advocate shall not enter into arrangements whereby funds in his hands are
converted into loans.38
h) An advocate shall not lend money to his client for the purpose of any action or
legal proceedings in which he is engaged by such client. An advocate cannot be
held guilty for a breach of this rule, if in the course of a pending suit or
proceeding, and without any arrangement with the client in respect of the same,
the advocate feels compelled by reason of the rule of the Court to make a payment
to the Court on account of the client for the progress of the suit or proceeding.39
36 Supra 7 2.6.3.2(21),(28)37 Supra 7 2.6.3.2(30)38 Supra 7 2.6.3.2(31)39 Supra 7 2.6.3.2(32)
13
Shambhu Ram Yadav v. Hanuman Das Khatry40 This case is a classic example where a lawyer suggesting his client to bribe the judge to
receive favorable order was suspended permanently from legal profession by the Bar Council
of India. His defense that such judge indeed received bribe and that he was merely replying to
the queries of his client who sought information, did not work in his favor Also, the defense
that he has a clean record as a legal practitioner for past fifty years and this was his first time,
did not soften the Court. On the contrary, the court suspended the accused lawyer for tainting
the legal profession in spite of the wisdom and experiences gained over the years.
Decided on July 26,2001
Before Mr. Justice K.T. Thomas & Mr. Justice Y.K. Sabharwal
Judgment delivered by Honorable Mr. Justice Y.K. Sabharwal
Reported: (2001) 6 SCC 1; AIR 2001 SC 2509
Facts:
The respondent while appearing as a counsel in a suit pending in a civil court wrote a letter to
Mahant Rajgiri, his client inter alia stating that another client of his has told him that the
Judge concerned accepts bribe and he has obtained several favorable orders from him in his
favor; if he can influence the Judge through some other gentleman, then it is a different thing,
otherwise he should send to him a sum of Rs 10,000 so that through the said client the suit is
got decided in his (Mahant Rajgiri's) favor. The letter further stated that if Mahant can
personally win over the Judge on his side then there is no need to spend money.
Procedural History:
1. A complaint filed by the appellant against the respondent Advocate before the Bar
Council of Rajasthan was referred to the Disciplinary Committee constituted by the
40 AIR [2001] SC 2509; [2001] 6 SCC 1
14
State Bar Council.
2. In reply to the complaint, the respondent pleaded that the services of the Presiding
Judge were terminated on account of illegal gratification and he had followed the
norms of professional ethics and brought these facts to the knowledge of his client to
protect his interest and the money was not sent by his client to him. Under these
circumstances it was urged that the respondent had not committed any professional
misconduct.
3. The State Bar Council noticing that the respondent had admitted the contents of the
letter came to the conclusion that it constitutes misconduct. In the order the State Bar
Council stated that keeping in view the interest of the litigating public and the legal
profession such a practice whenever found has to be dealt with in an appropriate
manner. Holding the respondent guilty of misconduct under Section 35 of the
Advocates Act, the State Bar Council suspended him from practice for a period of two
years with effect from 15-6-1997.
4. The respondent challenged the aforesaid order before the Disciplinary Committee of
the Bar Council of India. By order dated 31-7-1999 the Disciplinary Committee of the
Bar Council of India comprising of three members enhanced the punishment and
directed that the name of the respondent be struck off from the roll of advocates, thus
debarring him permanently from the practice.
5. The respondent filed a review petition under Section 44 of the Advocates Act against
the order dated 31-7-1999. The review petition was allowed and the earlier order
modified by substituting the punishment already awarded permanently debarring him
with one of reprimanding him. The impugned order was passed by the Disciplinary
Committee comprising of three members of which two were not members of the
earlier Committee which had passed the order dated 31-7-1999.
6. The review petition was allowed and accepted by the Disciplinary Committee and the
earlier judgment of the Committee dated 31-7-1999 was modified and his suspension
15
for life was revoked and he was only reprimanded on 4-6-2000
Issues
A) Can Disciplinary Committee of Bar Council of India review the punishment
awarded?41 Can it deliver different view on the same set of facts?
B) Whether the communication to a client that a particular Judge is open to bribery and
suggest that the client should part with money (Rs 10,000 in this case) to be passed on
to the Judge, is a serious misconduct?42 How and what punishment should be awarded
for misconduct?43
C) What is the duty of Bar Council as Disciplinary Body?44
Holdings
1. Section 44 of the advocate's act empowers the Disciplinary Committee to review its
order however the court said that the there is a limit to this provision an took the view
that a different decision by the Disciplinary Committee on the same set of facts is not
permitted.
The court observed that the original order has been reviewed on non-existent grounds.
All the factors taken into consideration in the impugned order were already on record
and were considered by the Committee when it passed the order dated 31-7-1999.
The court said that the power of review has not been exercised by applying well-
settled principles governing the exercise of such power, It took the view that all the
reasons and facts were taken into consideration by the earlier Committee; the relevant
portion of the letter written by the advocate had be produced and that the respondent
has admitted that the letter was sent requiring his client to send Rs 10,000 for the
payment as bribe to the Judge concerned.
41 Supra 2 s 44, 37, 3542 Supra 2 s 3543 Ibid44 Supra 2 s 36
16
The Court finally observed that the exercise of power of review does not empower a
Disciplinary Committee to modify the earlier order passed by another Disciplinary
Committee taking a different view of the same set of facts.”45
2. The Court took serious note of the misconduct by the advocate:
The Court questioned that how the Committee had come to the conclusion that the
respondent “had no intention to bribe the Judge” as there was nothing on the record to
suggest it. The earlier order had taken into consideration all relevant factors for
coming to the conclusion that the advocate was totally unfit to be a lawyer having
written such a letter and punishment lesser than debarring him permanently cannot be
imposed.
The respondent was indeed guilty of a serious misconduct by writing to his client the
letter as aforesaid. The court in this regard said that members of the legal profession
are officers of the court and they also owe a duty to the society which has a vital
public interest in the due administration of justice. Upholding the order dated 31-7-
1999 which in consideration of the misconduct imposed the penalty of permanent
debarment the Court said that the punishment has to commensurate with the gravity of
the misconduct.46
3. With regard to the duty of the Disciplinary Committee the court said that
“The disciplinary bodies are guardians of the due administration of justice. They have
requisite power and rather a duty while supervising the conduct of the members of the
legal profession, to inflict appropriate penalty when members are found to be guilty of
misconduct. It is the duty of the Bar Councils to ensure that lawyers adhere to the
required standards and on failure, to take appropriate action against them. The
credibility of a Council including its disciplinary body in respect of any profession
whether it is law, medicine, accountancy or any other vocation depends upon how they
deal with cases of delinquency involving serious misconduct which has a tendency to
erode the credibility and reputation of the said profession.”47
“Since the Bar Councils under the Advocates Act have been entrusted with the duty of
45 Supra 40 [7]46 Ibid47 Supra 40 [8]
17
guarding the professional ethics, they have to be more sensitive to the potential
disrepute on account of action of a few black sheep which may shake the credibility of
the profession and thereby put at stake other members of the Bar. Considering these
factors, the Bar Council had inflicted in its earlier order the condign penalty.”48
4. The Court set aside the impugned order dated 4-6-2000 and restoring the original
order of the Bar Council of India dated 31-7-1999 permanently suspending the
advocate from practicing
48 Ibid [9]
18
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4. Kailash Rai, Accountability for Lawyer & Bench (9th edn. Central Law Publication
2008)
5. Subramanyam Advocates Act, Commentaries on Advocates Act with Bar Council
Rules (Central & States) with Professional Ethics & Allied Laws (3rd edn Kumar Law
