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CASE 13 prof ethics

professional ethics (St Joseph's College of Law, Bangalore)

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CASE 13

16(2) 1989 IBR 285 D.C. Appeal No. 3/1988

J.M. vs. S.S.

Shri V. Rajayah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members)

Judgement Dated- 2nd September 1988

Negligence not amounting to misconduct

Professional misconduct means wrong or improper conduct. Misconduct
means an act that takes place with an incorrect purpose by the people who are
engaged with the profession. Any behavior of an advocate in violation of
professional ethics for his egocentric (self-interest) ends.
Professional misconduct is a dereliction (negligence or failure) of obligation
through an advocate towards his client or case.
Eg- Any Professional negligence, Misappropriation, Changing sides, Contempt
of court and improper behavior before magistrate, furnishing false information,
Giving improper advice, Misleading the clients in court, Not speaking the truth,
Disowning allegiance to the court, Moving application without informing that a
similar application has been rejected by another authority, suggesting to bribe
the court officials, forcing the prosecution witness not to say the truth.

Negligence should be coupled with moral turpitude or delinquency to be misconduct.

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FACTS:
The Complainants Case:
 Complainant met with an accident due to a lorry driver who was driving rashly and
negligently.
 The Complainant was hospitalised and while he was being treated in the hospital as an
in-patient, he filed a case for compensation against the lorry driver, the lorry owner and
the insurer of the lorry.
 This case was a filed through a clerk of the Respondent , who approached the
Complainant for the case.
 Post discharge, the Complainant found that no case had been filed by the Respondent-
Advocate.
 He asked the advocate to return the papers. Even then the papers were not returned to
him.
 Thus the Respondent-Advocate here is guilty of professional misconduct by not
filing the case in spite of fees being paid and he also did not return the case papers
that the complainant had requested for.

Respondent’s Case:

 Here The Respondent admitted that he had filed the case of the Complainant, but he also
denied that his clerk had approached the Complainant for the case.

 As per the Respondent, a friend of the Complainant had approached the Respondent
for filing of the case.

 The Respondent said that the case filed by him was returned as more details were
required. He wrote several letters to the Complainant as well as to the friend of the
Complainant to supply those details. No reply had been received from either of them.

 The Respondent alleged that the Complainant did not pay him the fees as promised by
him.

 The Respondent admitted that he had received the letter from the Complainant asking
him to return the papers, but contended that though he had written back to him to come

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to his office and collect the papers. But the Complainant did not collect papers from his
office.

 Therefore he has not committed any misconduct, professional or otherwise.

The State Bar Council (SBC) went through the evidence on record, and was of the opinion
that the Respondent had not produced any evidence to show that he had replied the letters of
the Complainant.

The Respondent stated that usually such letters are replied in the routine course by the
clerk. he also stated that he remembered to have replied the letter of the Complainant
personally and that he had not sent it through registered post.

Letters:

There was no other evidence on record to show that the letter was supplied by the
Respondent.

Therefore the D.C. of the S.B.C. found him guilty of misconduct.

As far as filing of case is concerned,

 The Respondent stated that he had filed the case but the same was returned to him for the
want of particulars. He had contacted the Complainant and also his friend for those
particulars for no avail.

 Complainant said that he had inquired with the police station for those details and was
informed that the Respondent had already collected those details from the Police
Station.

 S.B.C. did not accept this statement of the Complainant, because an Advocate could not
have collected those documents.

 Therefore the say of the Complainant that he did not reply to letters written by the
Respondent because the details were already collected by the Respondent was rejected
by the D.C. of the S.B.C.

This view of the S.B.C. was upheld by the B.C.I.

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Now the only question before of the B.C.I. was whether the non-reply of the Complainant’s
letter by the Respondent amounted to negligence amounting to professional misconduct.

 It was clear from the records that no substantial injury or inconvenience was caused
to the Complainant by the act of the Respondent.

 Therefore, though the Respondent’s act amounted to negligence, it did not amount
to professional or other misconduct.

To support its order , the B.C.I. relied upon the decision of the Supreme Court reported in
AIR 1984 SC 110 Pandurang Dattatraya Khandekar vs Bar Council Of Maharashtra, ...
on 20 October, 1983 and the decision of Madras High Court reported in AIR 1926 Madras
568 .S.Varadachari vs The Bar Council Of Tamil Nadu on 22 December, 2010

ORDER

In view of the above circumstances, the D.C. of the B.C.I. was pleased to interfere with
the order passed by the D.C. of S.B.C. finding the Respondent guilty of professional
misconduct and the impugned( dispute- or challenged)order was set aside. In the result,
the appeal was allowed.

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