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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 countrys 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 90s. 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
lawyers 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, isnt 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, its 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. Its 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 advocates 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 partys 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 courts 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 HCs 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 Sub-
section (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 clients 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 clients 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 Jethmalanis 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 Iyers 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-lawyers-
unacceptable/ 19/8/2011

2. http://www.thetop.in/news/breach-of-professional-ethics-by-lawyers-unacceptable-
sc 20/8/2011

3. http://onespot.wsj.com/indian-politics/2011/05/09/2b818/breach-of-professional-
ethics-by-lawyers 21/8/2011

4. http://lite.epaper.timesofindia.com/getpage.aspx?
articles=yes&pageid=9&max=true&articleid=Ar00900&sectid=4edid=&edlabel=TOI
CH&mydateHid=10-05-2011&pubname=Times+of+India
22/8/2011

5. http://www.vpmthane.org/law1/Princ-
Articles/Client_Counseling_for_Tomorrow.pdf 23/8/2011