NCU SCHOOL OF LAW

Professional Ethics and

Accountancy

A case study of four cases related to

Professional Ethics

Table of Contents
 1. Hikmat Ali Khan Vs Ishwar Prasad Aryas & Ors AIR 1997 SC 864

2. Shambhu Ram Yadav Vs Hanum Das Khatry AIR 2001 SC 2509

3. Bar Council of Andra Pradesh Vs K. Satyanarayana AIR 2002 SC 475

4. T.C. Mathai & Anr. Vs District & Sessions Judge AIR 1999 SC 1385

Hikmat Ali Khan Vs Ishwar Prasad Aryas & Ors AIR 1997 SC 864

Facts
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 was 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. It was held that 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.

Issue
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.
Judgment

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 practicing 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.

Shambhu Ram Yadav Vs Hanum Das Khatry AIR 2001 SC 2509

Facts of the Case:-

  A complaint filed by the appellant against the respondent, Advocate before Bar Council
of Rajasthan was referred to Disciplinary Committee constituted by the State Bar
Council.
 The complaint was that respondent while appearing as a counsel in a suit pending in a
civil court wrote a letter to Mahant Rajgiri his client inter alia stating that his another
client has told him that the concerned judge accepts bribe and he has obtained several
favourable orders from him in his favour; if he can influence the judge through some
other gentleman, then it is different thing, otherwise he should send to him a sum of
Rs.10,000/- so that through the said client the suit is got decided in his (Mahant Rajgiri)
favour.
 The letter further stated that if Mahant can personally win over the judge on his side then
there is no need to spend money.
 This letter is not disputed.
 In reply to complaint, respondent pleaded that the services of the Presiding Judge were
terminated on account of illegal gratification and he had followed the norms of
professional ethics and brought these facts to the knowledge of his client to protect his
interest and the money was not sent by his client to him.
 Under these circumstances it was urged that the respondent had not committed any
professional misconduct
.

Judgment:-
The State Bar Council noticing that the respondent had admitted the contents of the letter came
to the conclusion that it constitutes misconduct.

In the order the State Bar Council stated that keeping in view the interest of the litigating public
and the legal profession such a practice whenever found has to be dealt with in an appropriate
manner.

Holding respondent guilty of misconduct under Section 35 of the Advocates Act, State Bar
Council suspended him from practice for a period of two years with effect from 15th June, 1997.

Appeal:-
The aforesaid order was challenged before the Disciplinary Committee of Bar Council of India.
By order dated 31st July, 1999, the Disciplinary Committee of Bar Council of India comprising
of three members enhanced the punishment and directed that the name of the respondent be
struck off from the roll of advocates, thus debarring him permanently from the practice.

The order dated 31st July, 1999 reads thus:

"In the facts and circumstances of the case, we also heard the appellant as to the punishment
since the advocate has considerable standing in the profession. He has served as advocate 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 client's 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. We also 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 paid within two months."

Review Petition:-
The respondent filed a review petition under Section 44 of the Advocates Act against the order
dated 31st July, 1999.

The review petition was allowed and the earlier order modified by substituting the punishment
already awarded permanently debarring him with one of reprimanding him.

The impugned order was passed by the Disciplinary Committee comprising of three members of
which two were not members of the earlier committee which had passed the order dated 31st
July, 1999.

The review petition was allowed for the following reasons:

 The Committee was under the impression as if it was the petitioner who had written a
letter to his client calling him to bribe the judge. But a perusal of the letter shows that the
petitioner has simply given a reply to the query put by his client regarding the conduct of
the judge and as such it remained a fact that it was not an offer on the side of the
delinquent advocate to bribe a judge. This vital point which touches the root of the
controversy seems to have been ignored at the time of the passing the impugned order.
 The petitioner is an old man of 80 years. He had joined the profession in the year 1951
and during such a long innings of his profession, it was for the first time that he
conducted himself in such an irresponsible manner although he had no intention to bribe.
  The Committee does not approve the writing of such a letter on the part of the lawyer to
his client but keeping in view the age and past clean record of the petitioner in the legal
profession the Committee is of the view that it would not be appropriate to remove the
advocate permanently from the roll of advocates. The Committee is of the considered
view that ends of justice would be met in case the petitioner is reprimanded for the
omission he had committed. He is warned by the Committee that he should not encourage
such activities in life and he should be careful while corresponding with his client.

Decision of Supreme Court:-

 The original order has been reviewed on non-existent grounds. All the factors taken into
consideration in the impugned order were already on record and were considered by the
Committee when it passed the order dated 31st July, 1999.
 The power of review has not been exercised by applying well settled principles governing
the exercise of such power.
 It is evident that the reasons and facts on the basis whereof the order was reviewed had
all been taken into consideration by the earlier Committee.
 The relevant portion of the letter written by the advocate had been reproduced in the
earlier order. From that quotation it was evident that the said Committee noticed that the
advocate was replying to letter received from his client.
 It is not in dispute that the respondent had not produced the letter received by him from
his client to which the admitted letter was sent requiring his client to send Rs.10,000/- for
payment as bribe to the concerned judge.
 We are unable to understand as to how the Committee came to the conclusion that any
vital point in regard to the letter had been ignored at the time of the passing of the order
dated 31st July, 1999.
 The age and the number of years the advocate had put in had also been noticed in the
order dated 31st July, 1999.
 We do not know how the Committee has come to the conclusion that the respondent `had
no intention to bribe the judge'. There is nothing on the record to suggest it.
 The earlier order had taken into consideration all relevant factors for coming to the
conclusion that the advocate was totally unfit to be a lawyer having written such a letter
and punishment lesser than debarring him permanently cannot be imposed.
 The exercise of power of review does not empower a Disciplinary Committee to modify
the earlier order passed by another Disciplinary Committee taking a different view of the
same set of facts.
The respondent was indeed guilty of a serious misconduct.
Members of the legal profession are officers of the court. Besides courts, they also owe a duty to
the society which has a vital public interest in the due administration of justice. The said public
interest is required to be protected by those on whom the power has been entrusted to take
disciplinary action.

The disciplinary bodies are guardians of the due administration of justice. They have requisite
power and rather a duty while supervising the conduct of the members of the legal profession, to
inflict appropriate penalty when members are found to be guilty of misconduct.

Considering the nature of the misconduct, the penalty of permanent debarment had been imposed
on the respondent which without any valid ground has been modified in exercise of power of
review. It is the duty of the bar councils to ensure that lawyers adhere to the required standards
and on failure, to take appropriate action against them.

The credibility of a council including its disciplinary body in respect of any profession whether it
is law, medicine, accountancy or any other vocation depends upon how they deal with cases of
delinquency involving serious misconduct which has a tendency to erode the credibility and
reputation of the said profession. The punishment, of course, has to be commensurate with the
gravity of the misconduct.

It is evident that the Bar Council considered that a high standard of morality is required from
lawyers more so from a person who has put in 50 years in profession. One expects from such a
person a very high standard of morality and unimpeachable sense of legal and ethical propriety.

Since the Bar Councils under the Advocates Act have been entrusted with the duty of guarding
the professional ethics, they have to be more sensitive to the potential disrepute on account of
action of a few black sheeps which may shake the credibility of the profession and thereby put at
stake other members of the bar.

Under these circumstances, we have no hesitation in setting aside the impugned order dated 4th
June, 2000 and restoring the original order of Bar Council of India dated 31st July, 1999. The
appeal is thus allowed in the above terms with costs quantified at Rs.10, 000/-.

Bar Council of Andra Pradesh Vs K. Satyanarayana AIR 2002 SC 475

Facts of the case

1. The Bar Council of Andhra Pradesh has filed this appeal against the order of the
Disciplinary Committee of the Bar Council of India dated 28th March, 1999 by which the
Bar Council of India has set aside the order passed by the State Bar Council removing the
name of the Kurapati Satyanarayana from the roll of the State Bar Council as he was found
guilty of grave professional misconduct in discharge of his duties.
2. Initially, O.S. No 1624 of 1991 was filed by the Shri. Gutta Nagabhushanam on the file
of the Additional District Munsif Magistrate. The said suit was decreed and the Execution
Petition No. 112 of 1995 was instituted for realization of the decretal amount. Mr. K.
Satyanarayana was engaged as counsel by Shri. G. Nagabhushanam in the execution
proceedings.
3. K. Satyanarayana received a total sum of Rs. 14600/- on various dates in the execution
proceedings but he did not make the payment of same to Shri. G. Nagabhushanam. Hence,
on 18th October, 1996 Shri. G. Nagabhushanam filed a complaint with the Additional
District Munsif, who then transferred the matter to the Bar Council of Andhra Pradesh.
4. The complaint filed and important documents were forwarded to the state Bar Council
and Mr. K. Satyanarayana chose not to file a counter. Hence the matter went to its
Disciplinary Committee which after examining the witnesses produced came to the
conclusion that Mr. K. Satyanarayana received the total sum of Rs. 14600/- belonging to
Shri. G. Nagabhushanam and retained the same with him. Hence, the disciplinary
committee of the State Bar Council concluded that the advocate had retained the money
with him and was thus guilty of “professional misconduct.” He was directed to return the
money to the complainant.
5. K. Satyanarayana asserted that he had informed Shri. G. Nagabhushanam through a post
card about the receipt of the decretal amount and that on 24 th April, 1996 he paid Rs.
11000/- to Shri. G. Nagabhushanam. However, these were not accepted by the Disciplinary
Committee as Mr. K. Satyanarayana failed to produce any evidence proving the payment
of the sum of Rs. 11000/-.
6. K. Satyanarayana then filed an appeal before the Disciplinary Committee of the Bar
Council of India. The Disciplinary Committee of the BCI agreed with the finding of fact
recorded by the State Bar Council that Mr. K. Satyanarayana failed to pay the amount of
Rs. 14600/- received by him on the behalf of Shri. G. Nagabhushanam in the execution
proceedings but came to the conclusion that Mr. K. Satyanarayana did not commit any
professional misconduct though there might have been some negligence on his part.
7. The Disciplinary Committee of BCI observed that the conduct of the appellant shows that
Mr. K. Satyanarayana never refused to return the money the same and also he had made
part payment of the total amount. Perusal of the file shows that Mr. K. Satyanarayana
could not make the payment of the remaining amount because of his family circumstances
as the remaining amount was utilized by him in his treatment. The Committee concluded
that Mr. K. Satyanarayana never wanted to misappropriate the decretal amount and hence,
the BCI set aside the State Bar Council’s order holding that the delinquent had not
 committed any professional misconduct though there might have been some negligence on
his part, which did not involve any moral turpitude.
8. The Bar Council of Andhra Pradesh has filed this appeal against the aforesaid order of
the Disciplinary Committee of the Bar Council of India.

Issues Involved

1. Whether or not retaining client’s money in this case amounts by an advocate amounts to
professional misconduct?
2. Whether or not in this case retaining client’s money is just negligence on the part of K.
Satyanarayana?
3. Whether or not K. Satyanarayana is guilty of professional misconduct?

Decision by the Supreme Court

 The Supreme Court said that the pleading of the point raised by the respondent that the
appeal filed by the Bar Council of Andhra Pradesh is not maintainable need not be
dilated as seven Judge Constitution Bench of this Court held in Bar Council of
Maharashtra M. V. Dabholkar and others, that the role of Bar Council is of dual capacity,
one as the prosecutor through its Executive Committee and the other quasi-judicial
performed through its Disciplinary Committee.
 The Supreme Court said that the finding of the BCI that there was no intention on the part
of the advocate to misappropriate the money of his client was not only “unfounded and
perverse” but also lacked the serious thought which was required to be given to the
disciplinary committee of the BCI in the discharge of quasi-judicial functions while
probing into such grave instances.
 Further, it said that it was neither pleaded nor shown that Mr. K. Satyanarayana was in
dire financial difficulty which promoted him to utilize the decretal amount for his
treatment which was with him in trust. This is an act of breach of trust. It said that “we are
firmly of the view that such types of excuses cannot be entertained being frivolous and
unsustainable”.
 Bench comprising Justice V. N. Khare and Justice Ashok Bhan said “adherence to correct
professional conduct in the discharge of one’s duties as an advocate is the backbone of
legal system. Any laxity while judging the misconduct which is not bona fide and
dishonest advocate would undermine the confidence of the litigant public resulting in the
collapse of legal system.”
 The Supreme Court referred to the case of Harish Chandra Tiwari Baiju, in which it was
held that “Amongst the various types of misconduct envisaged for a legal practitioner the
misappropriation of the client’s money must be regarded as one of the gravest.” It was
 observed that, “Among the different types of misconduct envisaged for a legal practitioner
misappropriation of the client’s money must be regarded as one of the gravest. In his
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 misdemeanor. Perhaps the gravity of such breach of trust would be mitigated
when the misappropriation remained only for temporary period. There may be a
justification to award a lesser punishment in a case where the delinquent advocate the
money before commencing the discplnnary proceedings.”
 Setting aside the BCI’s order, the Bench said that “the conduct of the delinquent, who is
an elderly gentleman, is reprehensible and is unbecoming of an advocate. It deeply pains
us that the delinquent who claimed to have practised for three decades and has worked as
Government advocate for four years should have been guilty of such serious misconduct.”
 Hence, the Supreme Court has upheld an order of the Andhra Pradesh Bar
Council removing the name of a lawyer from its rolls after he was found guilty of “grave
professional misconduct” in the discharge of his duties and also the appellant shall be
entitled to the costs of this appeal, which was assessed as Rs. 5000/-.

Opinion

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.

T.C. Mathai & Anr. Vs District & Sessions Judge AIR 1999 SC 1385

Facts of the case

  Husband and Wife living in Kuwait were arrayed as respondents in a criminal revision
petition before Sessions Court.
 Appellant(T.C. Mathai) claimed to be power of attorney holder and sought permission to
appear before the Court.
 Sessions Court Denied as the request did not originate from the respondent-couple
themselves.
 Appellant moved High Court of Kerala under Article 226 for issuance of a direction to
Sessions Judge to grant permission. A Single Judge dismissed the petition.
 Appellant filed a writ appeal with the Division Bench of the High Court. This was also
dismissed. Which ultimately led to the petition being filed in Supreme Court.

Issue
Can the appellant become the pleader on the strength of the power-of-attorney on behalf of the
husband-wife?

Judgment
The Supreme Court referred to:

“M. Krishnammal V T.Balasubramania Pillai” where the Madras High Court had to
decide on the question that whether a holder of power-of-attorney could claim the right of
audience in High Court on behalf of his principal? The Madras High Court observed that
“An agent with a power of attorney to appear and conduct judicial proceedings, but who
has not been so authorised by the High Court, has no right of audience on behalf of
principal, either in the appellate or original side of the High Court. There is no warrant
whatever for putting a power of attorney given to a recognized agent to conduct
proceedings in court in the same category as a vakalat given to a legal practitioner,
though latter may be described as a power of attorney which is confined only to
pleaders”

The SC while relying on Section 205 of Cr.PC and Section 32 of Advocates Act, observed that
the observation of Madras HC, even though 60 years old, would still represent the correct legal
position. And, that an agent cannot become a pleader for the party in a criminal proceeding,
unless the party secures the permission from the court. In this case the party had not even
approached the courts even once.