CASES OF FRAUD COMMITTED BY ADVOCATES

SUBJECT: PROFESSIONAL ETHICS

CHANAKYA NATIONAL LAW UNIVERSITY,

NYAYA NAGAR MITHAPUR, PATNA

SUBMITTED TO:

Dr. Anshuman Pandey

Faculty of Professional Ethics

SUBMITTED BY:

Rishikseh Kumar

Roll No: 1366

B.A.LLB (Hons.)
 Table of Contents
ACKNOWLEDGMENT ..................................................................................................................................... 3
1. Introduction .............................................................................................................................................. 4
Fraud ......................................................................................................................................................... 5
2.The Code of Conduct Prescribed For Advocate ......................................................................................... 9
3.Fraud by Advocates.................................................................................................................................. 11
Recent Instances of Fraud by Advocates ................................................................................................ 11
L.C Goyal Vs. Naval Kishore ..................................................................................................................... 12
Devendra Bhai Shanakar Mehta vs. Ramesh Chandra Vitthal Das Seth................................................. 14
4.Conclusion ................................................................................................................................................ 18
Bibliography ................................................................................................................................................ 21

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 ACKNOWLEDGMENT

Writing a project is one of the most significant academic challenges, I have ever faced.
Though this project has been presented by me but there are many people who remained in veil,
who gave their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher Dr. Anshuman Pandey without the kind
support of whom and help the completion of the project was a herculean task for me.

I am very thankful to the librarian who provided me several books on this topic which proved
beneficial in completing this project.

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 INTRODUCTION

Advocacy is a noble profession and 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.1 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. Professional
misconduct refers to disgraceful or dishonourable conduct not befitting an advocat. 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,
says, where on receipt of a complaint or otherwise a State Bar Council has reason to believe that
any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case
for disposal to it disciplinary committee. Generally legal profession is not a trade or business, it‟s
a gracious, noble, and decontaminated profession of the society. Members belonging to this
profession should not encourage deceitfulness and corruption, but they have to strive to secure
justice to their clients. The credibility and reputation of the profession depends upon the manner
in which the members of the profession conduct themselves. It‟s a symbol of healthy relationship
between Bar and Bench.

The Advocates Act, 1961 as well Indian Bar Council are silent in providing exact definition for
professional misconduct because of its wide scope, though under Advocates Act, 1961 to take
disciplinary action punishments are prescribed when the credibility and reputation on the
profession comes under a clout on account of acts of omission and commission by any member
of the profession.2

Misconduct, according to Oxford dictionary means a wrongful, improper, or unlawful conduct

motivated by premeditated act.3 It is a behavior not conforming to prevailing standards or laws,
or dishonest or bad management, especially by persons entrusted or engaged to act on another's
behalf. The expression professional misconduct in the simple sense means improper conduct. In
law profession misconduct means an act done willfully with a wrong intention by the people
engaged in the profession. It means any activity or behaviour of an advocate in violation of

1
http://www.icmrindia.org/casestudies/catalogue/Law/LAW014.htm
2
https://blog.ipleaders.in/professional-misconduct-advocates-act-1961/
3
https://www.latestlaws.com/articles/all-about-procedure-for-filing-complaints-against-advocates-by-nisha-singla/

4
professional ethics for his selfish ends. If an act creates disrespect to his profession and makes
him unworthy of being in the profession, it amounts to professional misconduct. In other word an
act which disqualifies an advocate to continue in legal profession.

To understand the scope and implication of the term „misconduct‟, the context of the role and
responsibility of an advocate should be kept in mind. Misconduct is a sufficiently wide
expression, and need not necessarily imply the involvement of moral turpitude.4 „Misconduct‟
per se has been defined in the Black‟s Law Dictionary to be “any transgression of some
established and definite rule of action, a forbidden act, unlawful or improper behavior, willful in
character, a dereliction of duty.” In a different context, the Supreme Court has opined that the
word “misconduct” has no precise meaning, and its scope and ambit has to be construed with
reference to the subject matter and context wherein the term occurs. In the context of misconduct
of an advocate, any conduct that in any way renders an advocate unfit for the exercise of his
profession, or is likely to hamper or embarrass the administration of justice may be considered to
amount to misconduct, for which disciplinary action may be initiated.

Fraud

A false representation of a matter of fact—whether by words or by conduct, by false or

misleading allegations, or by concealment of what should have been disclosed—that deceives
and is intended to deceive another so that the individual will act upon it to her or his legal
injury.5

Fraud is commonly understood as dishonesty calculated for advantage. A person who is

dishonest may be called a fraud. In the U.S. legal system, fraud is a specific offense with certain
features. Fraud is most common in the buying or selling of property, including real estate,
Personal Property, and intangible property, such as stocks, bonds, and copyrights. State and
federal statutes criminalize fraud, but not all cases rise to the level of criminality. Prosecutors
have discretion in determining which cases to pursue. Victims may also seek redress in civil
court. Fraud must be proved by showing that the defendant's actions involved five separate
elements: (1) a false statement of a material fact,(2) knowledge on the part of the defendant that

4
AIR 1997 SC 864.
5
https://www.legalcrystal.com/dictionary/definition/96378/fraud

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the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4)
justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as
a result. These elements contain nuances that are not all easily proved. First, not all false
statements are fraudulent. To be fraudulent, a false statement must relate to a material fact. It
should also substantially affect a person's decision to enter into a contract or pursue a certain
course of action. A false statement of fact that does not bear on the disputed transaction will not
be considered fraudulent.6

Second, the defendant must know that the statement is untrue. A statement of fact that is simply
mistaken is not fraudulent. To be fraudulent, a false statement must be made with intent to
deceive the victim. This is perhaps the easiest element to prove, once falsity and materiality are
proved, because most material false statements are designed to mislead. Third, the false
statement must be made with the intent to deprive the victim of some legal right. Fourth, the
victim's reliance on the false statement must be reasonable. Reliance on a patently absurd false
statement generally will not give rise to fraud; however, people who are especially gullible,
superstitious, or ignorant or who are illiterate may recover damages for fraud if the defendant
knew and took advantage of their condition. Finally, the false statement must cause the victim
some injury that leaves her or him in a worse position than she or he was in before the fraud.

A statement of belief is not a statement of fact and thus is not fraudulent. Puffing, or the
expression of a glowing opinion by a seller, is likewise not fraudulent. For example, a car dealer
may represent that a particular vehicle is "the finest in the lot." Although the statement may not
be true, it is not a statement of fact, and a reasonable buyer would not be justified in relying on it.

The relationship between parties can make a difference in determining whether a statement is
fraudulent. A misleading statement is more likely to be fraudulent when one party has superior
knowledge in a transaction, and knows that the other is relying on that knowledge, than when the
two parties possess equal knowledge. For example, if the seller of a car with a bad engine tells
the buyer the car is in excellent running condition, a court is more likely to find fraud if the seller
is an auto mechanic as opposed to a sales trainee. Misleading statements are most likely to be
fraudulent where one party exploits a position of trust and confidence, or a fiduciary relationship.

6
https://law.jrank.org/pages/7003/Fraud.html

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Fiduciary relationships include those between attorneys and clients, physicians and patients,
stockbrokers and clients, and the officers and partners of a corporation and its stockholders.

A statement need not be affirmative to be fraudulent. When a person has a duty to speak, silence
may be treated as a false statement. This can arise if a party who has knowledge of a fact fails to
disclose it to another party who is justified in assuming its nonexistence. For example, if a real
estate agent fails to disclose that a home is built on a toxic waste dump, the omission may be
regarded as a fraudulent statement. Even if the agent does not know of the dump, the omission
may be considered fraudulent. This is constructive fraud, and it is usually inferred when a party
is a fiduciary and has a duty to know of, and disclose, particular facts.

Fraud is an independent criminal offense, but it also appears in different contexts as the means
used to gain a legal advantage or accomplish a specific crime. For example, it is fraud for a
person to make a false statement on a license application in order to engage in the regulated
activity. A person who did so would not be convicted of fraud. Rather, fraud would simply
describe the method used to break the law or regulation requiring the license.

Fraud resembles theft in that both involve some form of illegal taking, but the two should not be
confused. Fraud requires an additional element of False Pretenses created to induce a victim to
turn over property, services, or money. Theft, by contrast, requires only the unauthorized taking
of another's property with the intent to permanently deprive the other of the property. Because
fraud involves more planning than does theft, it is punished more severely.7

Fraud as a crime is nowhere defined in the Indian Penal Code but we all use this term in general
in our day to day life. A fraud is an act of deliberate deception with the design of securing
something by taking unfair advantage of another. It is a deception in order to gain by another‟s
loss.

Implications of fraud is found in these following sections of IPC nameley, 421,422,423 and
424.

 Fraudulent removal or concealment of property to prevent distribution among creditors

 Fraudulently preventing debt being available for creditors.
7
Supra note 6

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 Fraudulent execution of deed of transfer containing false statement of consideration.
 Fraudlent removal or concealment of property.

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 THE CODE OF CONDUCT PRESCRIBED FOR ADVOCATE

Section 49 of the advocates act 1961 empowers the Bar Council of India to frame rules
regulating standards of professional conduct.8 Accordingly various duties are prescribed for the
advocates some of them are highlighted below.

No advertising or soliciting work, it is against an advocate‟s code of ethics to solicit or advertise

work and amounts to a misconduct on the part of the advocate. Both direct and indirect
advertising is prohibited. An advocate may not advertise his services through circulars,
advertisements, touts, personal communication or interviews not warranted by personal relations.
Similarly, the following forms of indirect advertising are prohibited:

(i) by issuing circulars or election manifestos by a lawyer with his name, profession and address
printed on the manifestos, thereby appealing to the members of the profession practising in the
lower courts who are in a position to recommend clients to counsel practising in the HC.

(ii) canvassing for votes by touring in the province or sending out his clerk or agents to the
various districts, which must necessarily mean directly approaching advocates practicing 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 specializes in a particular kind of work, or that he is or was
associated with any person or organization or with any particular cause or matter.

Not to demand fees for training; An advocate is restrained from demanding any fees for
imparting training to enable any person to qualify for enrolment.

8
S. 49, Advocates Act, 1961.

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Not use name/services for unauthorized practice; An advocate may not allow his professional
services or his name to be associated with, or be used for any unauthorized practice of law by
any lay agency.

Not to enter appearance without consent of the advocate already engaged: an advocate is
prohibited from entering appearance in a case where there is already another advocate engaged
for a party except with the consent of such advocate. However if such consent is not produced,
the advocate must state the reasons for not producing it, and may appear subsequently, only with
the permission of the court.

Duty to opposite party:- While conducting a case, a lawyer has a duty to be fair not only to his
client but also to the court, and to the opposite party. An advocate for a party must communicate
or negotiate with the other parties regarding the subject matter of controversy, only through the
opposite party‟s advocate. If an advocate has made any legitimate promises to the opposite party,
he should fulfill 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. A complaint against an advocate has to be in the form of a petition. It has to be duly
signed and verified as required under the Code of Civil Procedure.

The complaint can be filed in English or in Hindi or in a regional language where the language
has been declared to be a state language. In those cases where the complaint is in Hindi or in any
other regional language, the State Bar Council shall translate the complaint in English whenever
a disciplinary matter is sent to the Bar Council of India as per the Advocates Act.

Every complaint shall be accompanied by the fees prescribed in the Bar Council of India Rules

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 FRAUD BY ADVOCATES

Recent Instances of Fraud by Advocates

The Supreme Court has said that a lawyer, who plays fraud with the Constitution and goes on to
cheat his client, does not have a right to practice in courts. A person who dupes his clients cannot
be permitted to be on advocates' roll, it added.9

A bench of Justices A K Sikri and Ashok Bhushan made the oral observations after it was
pointed out to the court that an advocate, B N Shivanna, who practised in High Court of
Karnataka at Bengaluru and was debarred for life by the Karnataka State Bar Council (KSBC)
has been shown leniency by the Bar Council of India. The apex regulatory body reduced the
KSBC's punishment to merely 18-month suspension.

Advocates B K Sampath Kumar and Balaji Srinivasan, representing a multinational seed

company, Advanta India Ltd (now UPL Limited) challenged the decision of the Bar Council of
India. They contended that Shivanna was engaged as retainer but he falsely told the company
that several criminal cases have been filed in the courts at Hubballi, Mysuru, Chitradurga,
Ballari, Sandur, Raichur etc for supplying spurious and sub-standard seeds. Thereafter, he
charged the company Rs 10,000 for each case towards court fees payable to one S Gauri, who is
none other than his mother-in-law, to file a petition before the High Court of Karnataka for
quashing the proceedings. He was also accused of forging a judgement from the high court,
quashing as many as 341 criminal cases.

After the company officials found that Shivanna had played fraud with them, they filed a
complaint with the high court, which intitiated suo motu contempt proceedings and held him
guilty on August 18, 2004. The apex court had in its judgement on March 14, 2011 dismissed his
appeal and directed him to serve the six-month jail term with Rs 2,000 fine under the Contempt
of Court Act.

9
Dhananjya Mahapatra, Can‟t Sue Lawyers for Wrong Advice, Time of India (Sept. 22, 2012),
https://timesofindia.indiatimes.com/india/Supreme-Court-Cant-sue-lawyers-for-wrong-
advice/articleshow/16497152.cms

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L.C Goyal Vs. Naval Kishore

This appeal filed under Section 38 of the Advocates Act, 1961

FACTUAL MATRIX OF THE CASE

In the instant case an appeal has been filed in the supreme court of India by an advocate who has
been adjudged by the Delhi Bar Association and Supreme Court Bar association to have
conducted fraud.

In the instant case the appellants i.e. the advocate O.P Rana had induced the complainant Nawal
Kishore to pay him a sum of around Rs. 2000/- towards the fees of SLP. However, the SLP fee is
payable if the same is admitted by the Hon‟ble Supreme Court. The Appellant through his PA
Balram had induced his client to pay the sum and the advocate had issued a duplicate receipt of
with the stamp of the Registrar of the Supreme Court. However, in the wake of findings the
receipt was found to be taken wrongfully by the advocate.

On appeal the said order was set aside by the Disciplinary Committee of the Bar Council of India
and the proceedings thereafter stood transferred to the Bar Council of India under Section 36-B
of the Act. The Disciplinary Committee of the Bar Council of India, after completion of the
cross-examination of the appellant, heard the appellant and has passed the impugned order
wherein it has been found that the following circumstances have been made out:

(i) Receipt No. XXXX is a forged document.

(ii) The statement of Nawal Kishore that he paid Rs 2000 to the appellant as demanded by the
appellant through letter written by Balaram describing himself as PA to the appellant was
acceptable.

(iii) The suggestion that Balaram was a pairokar of Nawal Kishore could not be accepted since
Nawal Kishore has denied it and Balaram would not have described himself as PA to the
appellant in the letter to Nawal Kishore if in fact he was a pairokar of Nawal Kishore.

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(iv) Nawal Kishore became suspicious and showed the receipt given to him by the appellant to
Shri Garg who on verification from the Cash Section of the Supreme Court found that the receipt
was a forged document and thereupon the matter was reported to the Registrar.

FINDINGS OF THE DC

(a) When the Registrar asked the appellant's explanation, in the first instance, the appellant did
not deny the allegations and asked for looking in the records of the Supreme Court. With his
experience as an Advocate-on-Record the appellant would have immediately denied the
allegation if in fact he had not obtained the sum of Rs 2000 and if in fact he had not given the
receipt to Nawal Kishore.

(b) Nawal Kishore had stated that the appellant advised him to take back his complaint from the
Registry of the Supreme Court and that the appellant would return the amount due to Nawal
Kishore but Nawal Kishore had expressed his inability to do so. The appellant had not cross-
examined Nawal Kishore on this point.

JUDGEMENT

We have heard the appellant, who has appeared in person, in support of the appeal. He has
submitted that the receipt had been fabricated by the complainant. The further submission of the
appellant is that the complainant did not have the necessary funds and his statement that he had
paid Rs 2000 to the appellant for depositing the court fee should not be accepted. The appellant
has invited our attention to the statement of the complainant wherein he stated that he had
borrowed Rs 2000 from his brother Kamal Kishore. It has been urged that since Kamal Kishore
has not been examined the said statement of the complainant should not be believed. We do not
find any merit in these submissions of the appellant. The statement of the complainant has been
fully considered by the Disciplinary Committee and has been found acceptable. We have also
perused the statement of the complainant. We are in agreement with the assessment of the
evidence of the complainant by the Disciplinary Committee. We are unable to discard the
testimony of the complainant merely because he has stated that he had borrowed Rs 2000 from
his brother Kamal Kishore who has not been examined in support of the said statement. During

13
the course of cross-examination no question was put to the complainant disputing the correctness
of the aforesaid statement about his having borrowed Rs 2000 from his brother Kamal Kishore.

We are also unable to accept the contention of the appellant that Balaram had nothing to do with
him. The letter dated 7-9-1979 from Balaram to the complainant was on the letterhead of the
appellant and in the said letter Balaram has described himself as PA to the appellant. During the
course of cross-examination the complainant has denied that Balaram was his pairokar and has
stated that he had seen Balaram sitting in the chamber of the appellant doing typing and other
work in the chamber. There is no reason why the said statement of the complainant should not be
accepted. The Appeal therefore was dismissed.

Devendra Bhai Shanakar Mehta vs. Ramesh Chandra Vitthal Das Seth

FACTUAL MATRIX OF THE CASE

The appellant was an Advocate practising in Bombay. Respondent No.1 (the complainant)
made a complaint to the Bar Council of Maharashtra alleging professional misconduct against
the appellant. His case was that he was a proprietor of a firm engaged in a business of
manufacturing. He was in need of financial accommodation and a financier impressed upon
him that on examination of his papers by a solicitors' firm run by the appellant, he would be
given loan. He was also told that the appellant was also one of the investors. The complainant
on such representation agreed to get loan through the financier. On inspection of properties
of the complainant the financier told him that a loan upto Rs.7 lakh would be advanced to
him provided he would pay at the rate of 5-1/2% on the advance of amount of loan towards
legal and other expenses. In a meeting held at the residence of the appellant in connection with
the proposed loan the appellant told the complainant that he was an advocate of a
certain firm and he worked only for the genuine financiers and would look to the interests of
the loan seekers. He also told that he was himself a member of the internal group of the
financiers. The appellant induced the complainant to part with certain money for legal expenses
and in formed him that out of 5-1/2% of the amount of loan required to be paid by him by way of
legal expenses the appellant would keep 3- 1/2% for the stamp duty payable to the Government.
He also told that the disbursement could be expedited only if the complainant paid cash to

14
the financier before certain date. On the stipulated date the complainant paid RS.25,000 to the
financier. He also paid the balance of Rs.13,500 to the appellant. Thereafter the appellant
made all attempts to delay the disbursement and asked the complainant to pay Rs.10,000
more which the latter paid. However, the proposed loan was not disbursed and instead of it, the
financier made a complaint against the complainant in the Social Security Branch.

The complainant made a complainant to the CID Branch of Bombay Police against the financier
and the appellant. The financier was chargesheeted. On the advice of the police the
complainant made an application to the Maharashtra Bar Council. He also alleged that the
appellant had indulged in fraudulent activities in respect of other persons and at- tached a list
of witnesses to the complaint. The appellant challenged the proceedings before the High Court,
but the Write Petition was dismissed and the proceedings before the State Bar Council
continued.

The complaint before the State Bar Council could not be disposed of within the statutory period
and the case stood transferred to the Disciplinary Committee of the Bar Council of India.
Meanwhile the financier died. The Disciplinary Committee analysing the evidences
dispassionately and considering the affidavits filed on behalf of both the parties as also
the affidavits filed by some witnesses alleging that they had also become the victim of
fraudulent action and cheating by the financier and the appellant, held that there was a racket for
defrauding and/or cheating to aspirant loanees, and the financier and the appellant-
advocate were parties to such racket; that the appellant in connivance with the financier
defrauded the complainant in receiving large sum of money on the pretext of legal expenses and
other incidental costs for advancing the proposed loan to the complainant, but such loan was
never advanced to him; that the appellant had received Rs.10,000 from the complainant; that a
case of professional misconduct under section 35 of the Advocates Act had been established
against the appellant. The Committee, therefore, ordered the name of the appellant to be removed
from the State Roll of the Bar Council of Maharashtra.

In the appeal to this Court,it was contended on behalf of the appellant that he had no role in
the matter of alleged fraudulent activities of cheating by the financier and/or some other persons
as he was engaged by the financier for preparing the document of mortgage after inspection of

15
records of the complainant for advancing the proposed loan and he had only rendered the
professional service as an advocate in a fair and proper manner; that the appellant had only
received his professional fees from the financier and did not receive any amount from the
complainant; that the finding of the Disciplinary Committee that the appellant had been a
member of the racket and had taken part in defrauding and cheating the complainant was based
on surmises and conjectures; and that the Disciplinary Committee committed a grave error in
law in considering the evidence of witnesses who were total strangers to the case of alleged
fraud and cheating.

JUDGMENT

The appellant advocate has not only misused the trust reposed in him but has played an active
part in defrauding or cheating the complainant who on the basis of the false representation of the
appellant had to part with substantial amount to his serious loss and prejudice. A perusal of the
entire evidence placed on record leads to the irresistible conclusion that the appellant was not
only having full knowledge about the racket but was also an active member of such racket and
was getting substantial financial advantage. The appellant was not a silent spectator merely
giving his legal advice, but was an important link in the modus operandi of running a racket
by the financier. The evidence of many other applicants seeking loan showing that they were
also duped and met the same fate as the complainant, speaks volumes against the conduct
of the appellant. An advocate indulging in such nefarious activities is not entitled to continue
as a member of legal profession which is based on the implicit faith and confidence in the
mind of the client. It is not the case of a lapse to take appropriate steps by and advocate
and/or a case of negligence in discharging the duties so that any lenient view may be taken
against the concerned advocate. An advocate enrolled under the Advocates Act, 1961, having
a licence to represent the case of litigants is expected to maintain a high standard of
morality and unimpeachable sense of legal and ethical propriety. The complainant specifically
alleged that there was a racket to which the appellant and the financier were parties. He
indicated the modus operandi by which he became victim of the fraudulent activities of the said
members of the racket. To bring home the case of racket, the deposi- tions of other persons
who had also approached the financier for advancement of loan and had been dealt with by
him and the appellant in similar manner and though they had to part with substantial amount

16
towards legal and other expenses for getting the proposed loan, such loan had not been ultimately
sanctioned to them, became relevant and necessary to be looked into.

It is always permissible to draw reasonable infer- ence from the facts established in a proceeding
and such reasonable inference cannot be termed as finding based on surmises and conjectures.
There is no manner of doubt that in any proceeding, judicial or quasi judicial, there is
requirement of proof and such requirement cannot be substi- tuted by surmise and conjecture.
But proof may be estab- lished directly on the basis of the evidence adduced in the proceeding
or the allegation of fact may be established by drawing reasonable inferences from other
facts established by evidence. In the instant case, the Committee, has referred to the
admitted facts and also the facts established in evidence and on a proper analysis of the facts
so established and/or admitted, it has drawn reasonable inference. The Committee was
alive to various aspects of the case and has taken care in meticulously scrutinising and
analysing the evidence on record and the materials, and the Committee has based its finding by
giving cogent reasons and the inferences drawn from the established facts also appear quite
reasonable. The Disciplinary Commit- tee deserves commendation in disposing of the
complainant's case fairly and dispassionately. In the matter of imposition of punishment, the
Disciplinary Committee has referred to the relevant decisions of this Court and has imposed the
penalty by recording good reasons for the same.

17
 CONCLUSION

The advocates act 1961 was a long sought after legislation to consolidate the law relating to the
legal practioners, constitution of autonomous Bar Councils, prescription of uniform qualification
for admission and enrolment of persons as advocates, more importantly it imposes punishment
for professional misconduct by advocates and in that respect it acts as a quasi-judicial body. Only
body that can be approached for professional misconduct of advocate is Bar council constituted
under the Act except for contempt of court which is also a misconduct. However the following
criticisms are levelled against the Act in terms of its power to punish for professional and other
misconduct;

1) No provision of appeal is provided in the act in respective High courts, hence power of bar
Council of the State is equated with that of High court.

2) In ordinary course it is difficult for an advocate to approach the Supreme Court and get the
case admitted from an aggrieved order of the Bar Council of India.

3) The act has not defined the term misconduct, instead it has included professional and other
misconduct and definition is left to the Bar councils and Supreme court to decide and to widen
the scope.

4) Denial of the principle of natural justice to an ordinary litigant who is aggrieved with the
misconduct of the advocate, as the body of their association ie Bar council is deciding the case in
which their own member is the respondent. This is against the rule that “no man can be a judge
in his own case”. The lay person has to approach appropriate fora constituted under Consumer
Protection act 1986 to get any pecuniary relief due to the loss caused by such misconduct, if it
fits under deficiency of service.

5) At times, based on the circumstances the Act is violative of Article 19 (1) (g), right to practice
trade or profession, and also freedom of speech and expression enshrined in Article 19(1)(a).

However the intention of the legislature to uphold the dignity of the profession and to preserve
the moral etiquette among legal practioners have been largely achieved by the Act.

18
In England The Legal Profession Act, 1987 is “an Act to regulate the admission and practice of
barristers and solicitors” (as amended in 2007) and the The Revised Professional Conduct and
Practice Rules made by the Council of the Law Society of New South Wales on 24 August 1995
pursuant to its power under Section 57B of the Legal Profession Act, 1987 and the Statement of
Ethics proclaimed by the Law Society of New South Wales in November 1994 governs the
conduct in legal profession. From 2010 on wards legal ombudsman is formed to deal with
complaints against all lawyers, including solicitors, registered in England and Wales. The Legal
Ombudsman replaced the previous complaint handling bodies (for example, the Legal
Complaints Service in the case of complaints against solicitors), and has been dealing with new
complaints since 6 October 2010. Anyone who is dissatisfied with the standard of service
received from their lawyer should complain, in the first instance, to the lawyer concerned. If the
matter cannot be resolved in this way, then a complaint may be made to the Legal Ombudsman.

USA – in USA each state has a separate set of rules of practices and different code of conduct for
the advocates. For example the newyork state has a separate rules of Professional Conduct
promulgated as Joint Rules of the Appellate Divisions of the Supreme Court, effective from
April 1, 2009. They supersede the former part 1200 (Disciplinary Rules of the Code of
Professional Responsibility). Indiana state has separate rules for professional conduct, which
elaborates in detail about all aspects of professional conduct and code of ethics to be followed by
an advocate.

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.

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The advocate, as an officer of the Court, also has the responsibility to render services of sound
quality. Lapses in services in the nature of absence when the matters are called out, the filing of
incomplete and inaccurate pleadings – many times even illegible and without personal check and
verification, the non-payment of court fees and process fees, the failure to remove office
objections, the failure to take steps to serve the parties are not merely professional omission.
They amount to positive dis-service to the litigants and create embarrassing situation in the court
leading to avoidable unpleasantness and delay in the disposal of matters, and detrimentally
affects the entire judicial system.

Furthermore, as the officers of the court the lawyers are required to uphold the dignity of the
judicial office and maintain a respectful attitude towards the Court. This is because the Bar and
the Bench form a noble and dynamic partnership geared to the great social goal of administration
of justice, and the mutual respect of the Bar and the Bench is essential for maintaining cordial
relations between the two. It is the duty of an advocate to uphold the dignity and decorum of the
Court and must not do anything to bring the Court itself into disrepute, and ensure that at no
point of time, he oversteps the limits of propriety.

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 BIBLIOGRAPHY

PRIMARY SOURCES

 Advocates Act, 1961

SECONDARY SOURCES

 www.academicoup.com
 http://jstor.org/
 www.academia.edu
 www.legallyindia.com
 www.lawteacher.com
 www.scribd.com
 www.springer.com
 www.researchgate.net
 http://shodhganga.inflibnet.ac.in/

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