Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
CONTENTS
I PROFESSIONAL ETHICS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
1-34
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
34-47
Contempt of court
Civil Contempt
Criminal Contempt
Punishment for Contempt
Defences in Criminal Contempt
Defences in Civil Contempt
Contempt Against Subordinate Court
Contempt Procedure in High Court & Supreme Court
35
35
36
37
38
40
41
41
43
44
45
45
48-57
48
49
49
50
52
53
53
54
56
56
58-68
58
59
60
61
62
63
64
65
66
67
69-73
69
70
70
71
CHAPTER I
PROFESSIONAL ETHICS
Origin and Development of Legal Profession
Origin: In India, the Legal profession originated dring the
British Rule. There is no evidence of the existence of legal Profession
before that ie. During the Hindu Rule and Mughal Dynasty period.
During that period, the administration of justice was in the hands of the
King and the Kings court was treated as the highest court of the country.
There is no appeal against the order of the King. Persons
disobeyed the Kings order was charged with sedition.During that period
the King was respected as the representative of God who was sent by
the God to render justice to the people.
In the Kings court the plaintiff has to represent his case
personally and thereafter the King will hear the other side. To assist
and advice and the King in the administration of justice there was a
council of ministers and a group of educationalists.
During Britishers Period : The East India Company which
started its business in India, during 16 th century slowly started capturing
important cities in India and they started administering those areas under
their control. They have created company courts and those courts were
headed by persons having no legal knowledge. And persons having no
legal knowledge were allowed to practice in the court.
The first time in India, the legal profession was recognized and
regulated by the Charter Act of 1774.This Act has permitted the
English lawyers to practice in the Supreme Court of Calcutta.
Later on in 1801, the English lawyers were allowed to practice
in the Madras Supreme Court and in the year 1823 they were allowed to
practice in the Bombay Supreme Court, but Indian Lawyers were not
Bar Council varies from state to state, depending upon the number of
Advocates on the State roll.
1. If the number of Advocates in the state roll is less then 5000
then the number of Bar Council members are 15.
2. If the number of Advocates are 5000 to 10000 then the number
of Bar Council members are 20.
3. If the number of Advocates are more then 10000 then the
number of bar Council members are 25.
Members are elected by the Advocates whose names are there in
the state roll by a single transferrable vote. The members hold office for
a period of 5 years.
The Advocate General of the Concerned State is an ex-officio
member of the State Bar Council. So long as he is holding the office as
Advocate General he can act as the member of the Bar Council.
Powers: The State Bar Council is empowered with the following
powers.
1. It is body corporate.
2. It is a legal body having the autonomous status.
3. It has a common seal and perpetual succession.
4. It can do the following things in its own name. Buying
and selling properties, Entering into agreements, Filing
cases.
5. It can constitute executive committee etc.
12. Do all other acts which are necessary for the effective
implementation of the above said functions.
Bar Council of India
Constitution: The following persons are the members of the Bar
Council of India.
1. One member from each State Bar Councils. He will be elected
by the members of the respective State Bar Councils.
2. Attorney General of India-Ex Officio member.
3. Solicitor General of India-Ex officio member.
Ex-officio members will continue as members so long as they
hold the offices of Attorney General and Solicitor General posts. The
other members will continue as members so long they are continuing as
members of the State Bar Council.
Powers: Bar Council of India is empowered with the following
powers.
1. It is a body corporate.
2. It is legal persons having the autonomus status.
3. It has a common seal and perpetual succession.
4. It can do the following things in its own name. Buying and
selling properties, Entering into agreements, Filing cases etc.
5. Transfer the name of the Advocate from one state roll to another
state roll on his application.
6. It can constitute executive committee, disciplinary committee,
legal aid committee etc.
7. To hear and decide appeal, review and revision against the orders
of the disciplinary committee of the State Bar Council.
8. Frame rules relating to day to day administration.
Functions: S.7 of the Advocates Act empowers the Bar Council
of India to perform the following functions.
1. Frame the rules relating to the professional ethics.
2. Frame the rules of procedure to be followed by the disciplinary
committee of the State Bar Councils and the Bar Council of
India.
3. Protect the rights and the privileges of the Advocates.
4. Encourage legal reforms.
5. Decide the repute relating to professional misconduct which is
transferred from the disciplinary committee of the State Bar
Council to the Bar Council of India.
6. Decide the appeal against the disciplinary committee of the State
Bar Council.
7. Supervise the functions of the State Bar Council.
8. Prescribe the syllabus of the law course in consultation with the
State Bar Councils and the universities.
9. Inspect the universities for the purpose of giving recognition to
the law degrees of the universities.
10. Spend the Funds of the Bar Council of India for the proper
purposes.
11. Conduct elections for the purpose of electing its members.
12. Allow the persons studied abroad to practice in India.
13. Do all other acts which are necessary for the effective
implementation of the above said function.
Qualification Prescribed for Enrolment
S.24 of the Advocates Act prescribes the following qualifications for a
person to enroll as an Advocate.
communicate it to all the High courts and the secretary to the State Bar
Council and the Bar Council of India. In the communication, the Name
of the Advocate and the date on which he was designated as the Senior
Advocate should be mentioned.
Advocate on Record
The Supreme Court rules of practice classifies the Advocates
into three categories. They are (i)Ordinary Advocates (ii) Senior
Advocates (iii) Advocates on Record.
An Advocate should have the following qualifications to become
as an Advocate on Record.
1. He must have completed 4 years of service as Advocate.
2. In addition to the four years of Service as Advocate he should
work for one year with an Advocate On Record, who has more
than 10 years of service.
3. He should pass the Advocate On Record test conducted by the
Supreme Court.
The test will be conducted on the following four subjects for
hundred marks each namely (i)Supreme Court Rules of practice and
procedures, (ii) Drafting and Pleading (iii0 Accountancy for the lawyers
and (v) Leading cases. To pass this test one should get minimum 50% in
each subjects and in aggregate minimum 60%. ie. Totally 240 marks.
The Successful Advocates will be recognized as Advocate On
Record by the Supreme Court and their name will be entered in a
separate register maintained for this purpose. Only Advocates on Record
alone is entitled to file cases in the Supreme Court. Every year they
should submit their annual income and expenditure account to the
Supreme Court.
If an Advocate on Record is selected as the Senior Advocate then
his name will be removed from the register of the Advocate on Record
and will be put in the register of the Senior Advocate.
Advocates Roll
practice law, only lawyers alone can practice law. Following are some of
the privileges.
1. A Lawyer has the privilege to represent his clients in the court
and tribunals.
2. A lawyer while going to the court to attend the case or while
returning from the court is exempted from arrest under civil
process.
3. A lawyer has a privilege of becoming judge, Attorney general,
Solicitor General, Advocate General and government councils.
4. Since he is fighting for the justice, he is respected next to God.
Seven Lamps of Advocacy
Justice Abbot Parry qualifies the following qualities as Seven
Lamps of Advocacy. They are (i) Honesty (ii) Courage (iii) Industry
(iv)wit, (v)Eloquence, (vi) Judgement and (vii) Fellowship.
1. Honesty: Honesty is the most important quality that an advocate
should possess. His thoughts words and deeds should have sincere corelation to each other with genuineness. An Advocate should be
dependable reliable to everyone who seeks his advise and services. The
uprightness, integrity and honesty of the Advocate will increase his
reputations and respect in the society.
2. Courage: It is the duty of an Advocate to fearlessly uphold the
interest of his client by all fair means without fear of any unpleasant
consequences to himself or any other person. It is the knowledge and the
skill of the Advocate that gives him the necessary courage and
confidence to present the case fearlessly and to uphold the interest of the
client. The knowledge and the skill can be acquired and developed by
mastery of facts, mastery of laws, mastery in drafting and presentations
of convincing arguments.
3. Industry: It means hard work. Hard works is absolutely necessary
for an Advocate. His knowledge of law should be up to date. He shall
never be ignorant of the current law in force. He shall get acquainted
with the latest law by systematic study. If one ignores the law, the law
will also ignore him. That is why it is said that law is the jealous
mistress.
4. Wit: Judges and lawyers have to deal with a variety of serious and
important matters affecting life and liberty of the people. So constant
clash between them is common. Anxiety for a favourable verdict on the
part of the lawyers; and perpetual worry for the pursuit of the truth on the
part of the judges generate strain and tension. Occasional wit and
humour, provoking a smile or laughter will help them to ease the tension,
and refresh themselves to sharpen their brain for the effective discharges
of the duties.
5.Eloquence: Eloquence means the fluency, force and style of using
the language. Strong vocabulary is one of the powerful weapon which an
Advocate should posses. Words are his keys of thoughts. Strong
vocabulary gives him assurance, build his self confidence and build his
personality. Words must be employed with eloquence. The art of
persuasive and impressive speaking will give the desired result in his
favour.
6.Judgement : It means the ability to come to a sensible conclusion
and make wise decisions at the relevant time in the proper way. It is on
the basis of these conclusions he should employ the necessary facts and
the techniques in the case which he is engaged. This quality is necessary
from the beginning of filing the case till its final disposal. An Advocate
must always anticipate all the possible moves of the other side and must
develop the necessary presence of mind , alertness and tact to cope with
any awkward situation of difficulty that may arise in the case.
7.Fellowship: In legal profession, one Advocate fights with another
Advocate for justice before the learned judge. There may be
controversies and contradictions in their contention relating to the case,
but that shall never affect the fellowship. The Advocates should refer the
opposite partys Advocate as Learned Friend and the judge should be
referred as Learned Judge. In order to maintain the fellowship, the
Bar Council of India has laid down certain rules to be observed as the
duty to colleagues.
Panchsheel of the Bar
Panchsheel refers to the following five qualities. They are (i)
Honesty (ii) industry (iii) justice (iv) Service and (v) Philosophy.
1. Honesty: (see P.12).
2. Industry: (see P.12).
3. Justice: An Advocate is as an Officer of the High Court. He
should help the Judge in finding out the truth in the dispute, and help him
to arrive the right decision. For this purpose he shall submit the proper
position of the law, facts and evidence related to the case. An Advocate
has to protect the interest of the client, but at the same time he must
Realize that he is not the mere mouth piece of the client. Therefore,
he shall never resort to unfair the practices. His efforts should be always
to advance the cause of the justice.
4. Service: Legal profession mainly concerned with the promotion
of administration of justice and the establishment of the welfare society.
Therefore, Lawyers shall be willing to protect the right of the oppressed
and the poor. They shall render their service to the general public without
any discrimination.
5. Philosophy: Lawyers should have some Philosophical outlook. An
Advocate has to deal with the variety of disputes both favourable and
unfavourable to his client. So, he should have the required mental fitness
to adjust and accommodate with the changes. It is therefore necessary
that lawyers should be guided by some philosophical principles suitable
to the profession.
Ten commandments of Advocates
The various duties of an Advocate like duties to the client, duties to
the court, duties to the colleagues and duties to the public shall be put
into the following ten rules popularly known as the ten Commandments
of Advocates.
1. Protection of the interest of the client: An Advocate must be
loyal to the interests of the client and fight for his cause without
the fear of any unpleasant consequence to him or any other
person (see duty to the client).
2. Proper Estimation of the value of the Legal Advise: An
Advocate shall not over estimate or under estimate the value of
his advice. He must always give proper legal advice to the client.
3. Honest and Respect: He must be always honest and respectful to
the court.
4. Preparation of the case: He must prepare the case thoroughly
before presenting it to the court.
5. Service: Lawyers shall be willing to protect the rights of the
oppressed and the poor.
Bar Council of India rules 11-33 prescribes the following duties as duty
to the client.
1. An Advocate is bound to accept a case in the courts or tribunals
where he is normally practicing.
2. He shall not withdraw from a case which he has already
accepted without sufficient reasons. He shall not withdraw from
the case merely because his fees has not been paid in full. He
shall withdraw from the case only after giving a reasonable
notice to his client. After his withdrawal he must refund such
part of the fees which is in excess in his hand.
3. He shall not accept a case in which he has reason to believe that
he will be called as witness. If he already engaged in a case in
which he is called as a witness then he should return the case.
But, if his retirement will cause irreparable loss to the client then
he can continue to appear as a lawyer.
4. He must make full and frank disclosures to his client relating to
his connection with the parties and his interest in the controversy
which may likely to affect his clients interest.
5. He should fearlessly uphold the interest of his client by fair and
honourable means without the fear of any pleasant consequences
to himself or to any other person. He shall not refuse to appear
for an accused person merely because in his personal opinion the
accused has committed the offence.
6. An Advocate appearing as a prosecution counsel shall be fair and
shall not conduct the prosecution with hostility to the accused to
secure conviction. He should not obstruct the defence counsel in
placing the relevant material evidence to prove the innocence of
the accused.
7. He shall not disclose any matter communicated to him in his
professional capacity to any other person without the consent of
his client.
8. He shall not be a party to fomenting of litigation.
21. He shall not convert the clients money in his hand as loan given
to him by the client.
22. He shall not lend money to his client for the purpose of any legal
proceeding in which he is engaged as the lawyer. But, any
amount given to his client in an unanticipated emergency shall
not be treated as beach of this duty.
23. An Advocate who has advised or prepared the pleadings or
appeared for a party in any suit or appeal shall not act, appear or
plead for the opposite party.
Restriction on Advertisement.
Rule 36 of Bar Council of India restricts the Advocates not to
advertise about the profession. This restriction is imposed because
Advocate profession is the noble profession.
Due to this restriction Advocates are banned to do the following
things.
1. Directly or indirectly advertise about their profession.
2. Publishing his photo along the news regarding his appearance in
a case.
3. Circulation of phamplets or giving advertisement with a view of
soliciting case.
His name board should be small and in prescribed size. In the
name board the following matters should not be mentioned.
1. Information relating to his membership in Bar Council or post in
the Bar Association.
2. Information about the specialization in a particular branch of
law.
3. Information about Ex-Judicial Officer or Ex-Government
Advocate.
4. Information about his membership in other associations.
Professional Misconduct
Misconduct means dereliction of duty. Professional misconduct
means dereliction of duty relating to Legal profession. Under S.35 of the
Advocates Act, An Advocate is punishable not only for professional
misconduct but also for other misconduct. Other misconduct means a
misconduct not directly connected with the legal profession.
Professional misconduct arises as a result of serious dereliction
of duties to the court, to the client, to the opponent, to the colleagues, to
the profession, to the public etc. Following are some of the instances of
professional misconduct.
1. Making false allegation against judicial officers.
2. Deliberately lodging groundless criminal complaint.
3. Making groundless and insulting charges against witness.
officers
for
favour
during
20. Presenting the plaint with in sufficient court fee stamp, when the
client has given money for the court fee.
21. Alleging partiality against presiding officer in open court.
22. Tampering with records and documents.
23. Writing letters to persons for soliciting cases.
24. Reporting no instructions from his client and subsequently
appearing for the opposite party in the same suit.
25. Advertising about his profession.
26. Taking advantage of the ignorance and illiteracy of the clients,
demanding money from them on false representations that is
required for court purposes and misappropriating the same.
27. Misappropriation of decreed amount payable to the client.
28. Giving wrong advise to the client.
29. Taking money from the client for the purpose of giving bribe.
30. Suppression of truth.
31. Changing sides.
32. Indecent cross examination.
33. Committing contempt of court.
34. False identifications of deponents.
35. Gross negligence involving moral turpitude.
36. Appearing without authority ie. On forged vakalath.
37. Failure to attend the trial.
ie., it can confirm. The order of the State Bar Council, or increase or
reduce the punishment, or totally remove the punishment.
2. Appeal to the Supreme Court : Any person aggrieved by an
order made by the Disciplinary committee of the Bar Council of India, or
the Attorney General of India may within 60 days from the date of order
prefer an appeal to the Supreme court. The Supreme Court after hearing
the parties concerned shall pass any order as it thinks fit.
Normally, the Supreme court will not interfere with the
concurrent findings of fact by the disciplinary committee of the Bar
Council of India and the State Bar Council. If the finding is based on no
evidence then the court will examine it.
3. Stay of the order: For the convenience of filing an appeal
against the order of the State Bar Council or the Bar Council of India, the
aggrieved party can file an application before the concerned Bar Council
which has passed the order to stay the order still appeal is filed. If
genuine grounds are there then the concerned Bar Council can stay the
order.
Similarly, after filing the appeal before the Bar council of India
or before the Supreme Court the aggrieved party can ask for the stay of
the order still the disposal of the appeal. If the genuine grounds are there
then the Bar Council or Supreme Court shall stay the order still the
disposal of the appeal.
Review of its own order by the State Bar Council
According to S.44, the Disciplinary committee of a State Bar
council is empowered to review its own order either on its own motion or
an application by the aggrieved party within 60 days from the date of
order.
In the review proceedings also the State Bar council will hear the
concerned parties before making any order.
Any order passed in review by the disciplinary committee of the
state Bar Council shall have effect only when it is approved by the Bar
Council of India.
The Disciplinary committee of the Bar Council of India has no
power to review its own order (S.48 AA).
Disciplinary Committee of the State Bar Council
Organaisation: S.9 of the Advocates Act empowers the state Bar
Councils to constitute one or more Disciplinary Committees. Each
3. Hear the appeal against the order of the State Bar Council.
4. Allowing the State Bar Council to review its own order.
Just like the Disciplinary Committee of the State Bar Council,
the Bar Council of India Disciplinary committee is also having powers
like a civil court.( See P.31).
Enquiry Procedure : ( Same as that of the Disciplinary Committee of
the Bar Council. See P.31).
Transfer of proceedings from the State Bar Council to the Bar
Council of India
If the State Bar Council after verification is satisfied that the
charges of professional misconduct is a fit case for enquiry then it shall
refer it to the Disciplinary Committee for the enquiry.
The Disciplinary Committee must complete the enquiry
proceedings within one year from the date of receipt. The main object of
putting a time bound enquiry is speedy disposal of the cases. Due to any
reason, if the enquiry was not completed within a year then the complaint
should be transferred to the Bar Council of India for enquiry. The transfer
should be made by the suo-motou by the State Bar Council (S.36 B).
The complaints so transferred shall be enquired by the
Disciplinary Committee of the Bar Council Of India and pass suitable
orders as it thinks fit. There is no time limit for the Bar Council of India
to complete the enquiry.
Advocates Welfare Fund
Rule 44-A provides for the creation of Advocates Welfare
Committee both in the Bar Council Of India and in the State Bar
Councils. The Bar Council of India Advocates Welfare committee shall
consist of 5 members, elected from among the members of the Bar
Council Of India. The State Bar Council Advocates Welfare committee
shall consist of 2 members elected from the State bar Council and the
Bar Council of India member from the State shall act as ex-officio
secretary. These committee shall implement the welfare schemes
approved by the Bar Council of India to the Advocates.
Every Advocate shall pay a sum of rupees decided by the Bar
Council as subscription. All the amount so collected by the State Bar
Council shall be remitted in a separate account known as Advocates
CHAPTER-II
BAR BENCH RERLATIONS
CONTEMPT OF COURT
Object of the Act: The main object of the contempt of court Act
is to protect the dignity and decorum of the court and to uphold the
majesty of law. The object is not to protect the judges from criticism. By
providing punishment for contempt of the court the ability to deliver
fearless and impartial justice is strengthened.
Definition: The definition given in the Act for the term contempt
of court is not exhaustive. it is difficult to define it by words, because the
scope of contempt of court is very wide. Contempt means
(i)Any disrespect to the authority of law.
(ii) Disobedience of the order of the court.
(iii) Disturbance to the proceedings of the court.
Types: Following are the types of contempt (i) Civil contempt
and(ii)Criminal contempt.
Civil contempt
S.2(b)defines the term `civil contempt .`It means (i)Willful
disobedience to any judgemaent,decree,direction,order,writ or other
process of a court;or(ii)Willful breach of an undertaking given to a court.
For taking action for civil contempt on the ground of willful
disobedience of court order, it should be established that the court which
has passed the order has jurisdiction to pass such order. Disobedience of
an order passed without jurisdiction is not a Contempt must prove that
the court has no jurisdiction.
A willful breach of an unconditional undertaking given orally or
in writing either in person or through his Advocate will be treated as civil
contempt. When undertakings are given orally , the court shall record it
in the proceedings.
Breach of a compromise entered in the court cannot be treated as
civil contempt. The remedy in such cases is only a civil suit for specific
performance of the promise.
Punishment: S.12 prescribes the punishment for contempt. court
may award any one of the following punishments.
(i) Simple imprisonment for a term which may extend to 6 months.
(ii)
So the term `Bench refers to the judges and the `Bar refers to the
Advocates. Bar-Bench relation means the cardial relation between the
judges and the Advocates.
The faith on the judiciary to the general public and the speedy justice
mainly depends on the cardial relation between the judges and the
Advocates. In the Administration of justice the role of Advocates are also
equally important just like the judges. Rendering justice is their joint
responsibility. Without the help of Advocates, it is very difficult for the
judges to arrive a correct decision in a dispute.
If good relation exists between exists between the judges and
Advocates then delay in rendering justice and high expences for getting
justice can be very much reduced. To strengthen the good relation both
should have some good qualities and mutual responsibilities.
Role of the Bar to Strengthen Bar-Bench Relation
To strengthen the Bar-Bench relation, the Advocates must take the
following steps.
1. They should give the due respect to the judges and they must
avoid speaking ill of the judges and the judiciary.
2. They should help the judges in the trial of the cases by
presenting the relevant law in the correct and clear manner. They
should never act in such away to irritate the judges.
3. If the judges pronounces a wrong order, they should not criticize
the judges. They should try to set right the wrong order through
appeal.
4. For getting favourable order they should not give pressure or
influence the judges.
5. If the judges behavior is irritating and disrespect to the
Advocates should not enter in to a direct confrontation with the
judge. Through the Bar Association the matter should be
discussed with the judge in his chamber and shall request to
avoid such misbehavior.(see generally the Duties to the court at p
16)
Role of the Bench to Strengthen Bar Bench Relation
Only when Bar-Bench relations are strengthened, people will get
confidence and fair on the Judiciary. To strengthen Bar-Bench relation
the Judges should follow and practice the following.
1. Judicial Respect: Just like the Advocates are giving respect to the
Judges the Judges should also give to the Advocates and the brethren
Judges.
2. Patient Hearing: Judges should hear the case with open and
respective mind without any prejudice or bias. They should act only to
the interest of justice. They should give sufficient opportunity for the
Advocates to present the case in full.
3. Impartiality: Judges should act impartialy. They should not act in
favour of any Advocate or a party to the dispute.
4. Avoidance of Interruptions: As far a possible, Judges must avoid
interruptions while the Advocate is examining witnesses and arguing the
case.
Unwarrented interference and adverse comments by the Judges may
upset the Advocates and thereby he may not be able to present the case
properly. This may cause the failure of justice.
Interference may be limited to the following circumstances(i)to
prevent repetition and waste of time(ii)to check the relevancy(iii)to get
clarifications (iv)to express courts view on a point and (v)to promote
speedy disposal of the case.
5. Proper Interpretation: During the process of administration of
justice, often the courts have to interpret the Act, Rules, Orders and
Notifications in order to ascertain the actual meaning of the provisions or
to remove the ambiguity or inconsistency. In such cases proper
interpretation should be given with the object of rendering complete
justice to the parties.
6. Avoidance of Unreasonable Adjournments: Adjournments are
given to afford reasonable opportunity to the parties to present the case.
As far as possible cases shall not be adjourned without reasonable and
sufficient grounds . Unreasonable adjournment is the main reason for the
mounting arrears of cases and it causes hardship to the parties.
7. Speedy Disposal: `Justice delayed is justice denied, hence cases
should be disposed off as quickly as possible. When preference is given
for disposal of old cases, care should be given to see that new cases
should not get into arrears.
8.Avoiding Unwarranted comments: Judges should not make any
unwarranted comments in the open court about the Advocates lack of
knowledge in the law. They should not ask any Advocate to leave the
court, without sufficient reasons. Similarly, they should not ask any
Advocate not to come to his court hereafter.
9.Knowing in Law: Judges should possess deep knowledge in law.
They should have the ability to apply the proper law to the disputed facts
and to take the right decision.
10. Independence: Judges have the primary responsibility to protect
and preserve the independence of judiciary, hence they should not yield
to the pressure of the Government.
11. Integrity: A Judge should be honest and morally upright. He
should have personal and intellectual integrity. His character and conduct
should be praise worthy. Then only the Advocates and the general public
will have confidence on him.
12.Industriousness: It means regular and systematic hard work and
study. A Judge should get acquainted with the latest developments and
changes in the law by regular updating of the knowledge.
13. Meeting of Judges and Lawyers: To strengthen Bar-Bench
relation, at regular intervals meeting of judges and the Advocates shall be
arranged. In such meetings the respective sides difficulties can be
discussed and the differences can be sorted out.
CHAPTER-III
SELECTED OPINION OF DISCIPLINARY
COMMITTEE OF THE BAR COUNCIL OF INDIA
ON PROFESSIONAL MISCONDUCT
1. Jagadish singh&other v.T.C.Sharma
BCI TR Case No.47/1990
Jagadish singh asnd others were employees of the Central Board
of Education,New Delhi.They were arbitrarily dismissed from service by
the Board. They approached T.C. Sharma an Advocate to file a case
against the arbitrary dismissal. They paid Rs.1400 as fees for the case.
Sharma gave a fake case number starting that he has field the
case before the central Administrative Tribunal, New Delhi. On
verification it was found that no such case has been field. Later they
engaged another Advocate Mr. Bhati to file the case and got a a
favourable order of reinstatement.
Therefore, they asked the return of Rs.1400 from T.C. Sharma.
He refused to pay the same. So, the complainant filed a petition against
him before the Delhi Bar Council alleging professional misconduct.
Since Sharma failed to appear during the enquiry, the state Bar Council
could not able to dispose off the case within one year. Hence, the case
was transferred to the Bar Council of India.
The Bar Council of India examined the petitioners, but the
respondent was absent. Finally the Bar council of India passed an order
holding the respondent guilty of professional misconduct and awarded
the following punishments.
1. Suspended him from practice for a period of 5 years.
2. Directed him to return the Rs.1400/-with 12%interest per annum.
3. Directed to give Rs.500 as cost to the complainant.
2. Bablal v.Subash Jain
BCI TR Case No.115/1986
The complainant and the Respondent are Advocates. The
complainant filed a petition before the Madhya Pradesh Bar Council
stating that the respondent to guilty of professional misconduct under
s.35. The allegation of the complainant is that the respondent a practicing
lawyer, is working as an Editor , Printer and Publisher of a weekly called
``Aaj Ki Janta He is the owner of the press which prints the weekly. It is
also alleged that the respondent did not disclose these facts while
applying for enrolment to the State Bar Council.
The respondent denied all the allegations. He contended that
before enrolment, the job of printing and publishing was transferred to
his wife and thereafter he was working only as an editor of the said
weekly.
Since the enquiry was not completed within one year, the case
was transferred to the Bar Council of India.
In the enquiry it was found that he enrolled in 1973 and
continued as the printer, publisher and editor of the weekly till 1983.
Only in 1983 printing and publishing was transferred in the name of his
wife. But, by a general power of attorney from his wife the respondent
was looking after the entire work of the weekly. Based on this findings
the Bar Council of India held that the respondent is guilty of professional
misconduct punishable under S.35 of the Advocates Act and passed the
following orders.
1. He was suspended from practice for a period of one year.
2. Suppression of the fact that he is the owner of the weekly in
the enrolment application cannot be treated as professional misconduct
punishable under S.35.
3.Baswarooponi v.Babulalsoni
BCI DC Appeal No.25/1992
Babulalsoni is the father of Balswaroopsoni. He filed a
complaint against his son alleging professional misconduct before the
Madhya Pradesh Bar Council. The allegations are as follows:
1. A criminal case under S.307 I.P.C. is pending against him.
2. while appearing as a defence counsel for one munna in a
criminal case No.125/89 he has introduced his own brother as
Dwarha Pradesh and arranged him to stand as surety for munna.
3. He has withdrawn a sum of Rs.1500 deposited in the court in the
name of Babulalsoni in a civil case without his consent.
Before the State Bar Council, Babulalsoni personally appeared
and produced certain documentary evidence in support of his case but the
present appellant did not appear though many chances are given to him.
Finally the Bar Council held that Balswaroopsoni is guilty of
professional misconduct and passed an order removing his name from
the Advocates Roll.
The respondent filed a very brief counter and failed to give any
explanation about the serious allegation of professional misconduct. He
simply prayed that for the same matter there is already a criminal case
pending against him, so the Bar Council should not proceed with the
complaint. When the petition was pending before the Bar Council, the
criminal case was disposed off and he was convicted.
Since the U.P Bar Council could not able to complete the
enquiry within one year the petition was transferred to the Bar Council of
India.
The Bar Council of India examined the complainant and the
respondent and finally came to the conclusion that the allegations against
the respondent the complainant has been proved beyond reasonable
doubt and directed the removal of his name from the roll of Advocates
and prohibited him from practicing as an Advocate.
5.Commisoner of Civil Supplies & Consumer Protection
Dept. v. Balakrishnan
DC Appeal No.15/1995
Mr.Chandrakanth of Villupuram has filed a writ petition
No.10589/90 in the Madras High Court praying for the release of a Van
TAH 4777 which was ceased by the Special Thasildar, Dindivanam on 57-1990. The writ petition was dismissed on 11-7-1990.The respondent
Mr.V.Balakrishnan was the Advocate for Mr.Chandrakanth in the writ
petition .After the dismissal of the Writ petition. After the dismissal of
the writ petition the respondent sent the following telegram to the
District Revenue Officer, South Arcot.
``High Court of Madras in writ petition No.10589/1990 filed by
Chandrakanth directed the District Revenue Officer to release the van
TAH 4777 with 100 bags of paddy within one week. Do not sell the
paddy. Detailed order follows.
In another writ petition No.6184/1990 the respondent sent the
following telegram to the Collector, South Arcot.
In writ petition No.6184/1990 filed by cuberan of villupuram for
release of 117 bags of paddy the High Court has ordered notice of
motion returnable on
11-6-90. Not to dispose the paddy till the final
order in the writ petition.
A petition was filed against Mr.Balkrishnan before the State Bar
Council alleging professional misconduct. It is alleged that the contents
of both these telegrams were false and is not in consonance with the
High Court order.
The State Bar Council gave benefit of doubt to the respondent by
observing that he acted with all enthuciasm to protect the interest of his
client. The State Bar Council observed that though his conduct is not
praise worthy, it did not amount to professional misconduct and thereby
no punishment is awarded to him.
Against this order an appeal was filed before the Bar Council of
India . After hearing both the parties, the Bar Council of India passed the
followings orders.
1.The order of the State bar Council was set aside.
2.He was found guilty of professional misconduct under S.35 of
the Act.
3.The act sending wrong telegram misquoting the content of the
court order is not an act fit for an Advocate and he was reprimanded with
strong words.
6.Banumurthy v.Bar Council of Andhar Praadhesh
DC Appeal No.3/1994
The appellant was a member of the Andhar Pradesh Judicial
service. When he was working as Metropolitan Magistrate at Hydrabad
there were certain allegations of corruption against him. A departmental
enquiry was conducted and e was served with an order of compulsory
retirement and retired on 30-7-1991.
After compulsory retirement he applied for resumption of
practice. The State Bar Council referred the matter to the Bar Council of
India because he had been found guilty by the departmental enquiry. The
Bar Council of India returned the matter to the Disciplinary Committee
of the State Bar Council found him guilty of professional misconduct and
suspended him from practice for a period of 2 years. Against this order
the present appeal has been filed.
When the appeal was pending, he was allowed to resume his
practice from 6-4-1994 by some court order. Bar Council of India
continued the enquiry and finally held that since 2 years has already
lapsed since his punishment for corruption charges, he shall resume his
practice.
7. Dr.D.V.P.Raja v.D.Jayabalan
BCI DC Appeal No.43/1996
The appellant lodged a complaint with the Bar Council of Tamil
Nadu alleging that the respondents application in the form of complaints
addressed to various authorities amounts to professional to misconduct.
The State Bar Council passed a resolution that there is a prima facie case
of professional misconduct and it was placed before the Disciplinary
committee of the State Bar Council for its adjudication.
Before the Disciplinary Committee the respondent raised a
preliminary issue that the Disciplinary Committee has no jurisdiction in
this matter because there is no connection between his standing as lawyer
and his representation to various authorities. The Disciplinary Committee
of the State Bar Council also accepted this argument and dismissed
complaint without going in to the merits of the complaint. The
Disciplinary Committee held that there was no nexus or proximity in his
standing as a lawyer and his to various authorities.
Against this order an appeal was filed before Bar Council of
India. In the Bar Council of India it was argued that the Bar Council of
Tamil Nadu having passed a resolution that there is a prima facie case
against the respondent, the Disciplinary Committee could not have
dismissed the complaint without hearing it on merits.
After hearing both the sides the Bar Council of Tamil Nadu has
passed a resolution that there is a prima facie case to be enquired in to by
the Disciplinary Committee has no power to consider the question of its
jurisdiction on the matter.
The decision of the Bar Council of Tamilnadu is good and valid.
8. G. M. Hirmani v.Iswarappa
BCI DC Appeal No. 30/1995
The petitioner filed a complaint against the respondent.
Mr.Iswarapa (a practicing lawyer) in the Bar Council of Karnataka
alleging professional misconduct on the following grounds.
1. The petitioner filed a partition suit against Grija Devi and
Premadevi (O.S.No.293/87). The respondent Mr.Iswarappa was the
general power of attorney holder of Smt. Girija Devi and Premadevi and
also acted as Advocate for them in the said case. He misused his position
as an Advocate and dominated the will of Girija Devi and Premadevi
and purchased one portion of the suit property on 30-3-93 from them.
has no notice that the appellant is going to make a mention in the case;
so``I will see to it. Immediately the appellant without any justification
abused the respondent in a very bad manner using vulgar words.
K.V. filed a complaint before the Bar Council of Tamilnadu.
N.S.denied all the allegations, but admitted that heated exchange of
words took place between them. After examining both the parties, the
Disciplinary Committee found him guilty of professional misconduct
and suspended him from practice for a period of 6 months.
N.S. challenged this order before the Bar Council of India. The
main question in the appeal is whether the abusive language used by the
appellant against the respondent would amount to professional
misconduct. The Bar Council of India held that it amounts to
professional misconduct but it held that the suspension of N.S. from
practice for a period of 6 months is not necessary and reprimanded with
strong words.
10.P.R(Complainant)v.V.I(Respondent)
BCI TR Case No.101/1998
The complainant was the District Munisif Magistrate at
Anakapalle from 19-11-84 to 8-4-85. The respondent was a practicing
Lawyer there. The respondent was the Advocate for a respondent in a
maintenance case. On 29-10-1985 when the case was called the
Advocate as well as his client was absent, so ex-party order was passed.
Therefore, the present respondent filed a contempt petition
against the complainant(P.R) in his court alleging the following things.
1.The High Court has passed transfer order to P.R. on 20-101985 but, instead of handing over the charge and obey the order he
continued there up to 8-11-1985 on certain pretest(arranged by him).
2.The complainant was wasting valuable time of the court and
also the revenue of the Govt.
P.R. referred this contempt petition to the District Judge. District
Judge referred it to High Court. The court advised P.R. to logde a
complaint against V.I. before the State Bar Council for professional
misconduct. Hence P.R. filed a complaint against the respondent alleging
professional misconduct because he has filed contempt petition on false
grounds under his signature against the presiding officer by name and
bringing down the reputation of he presiding officer. The respondent also
acted on his own and not under the instruction of his client.
CHAPTER IV
SELECTED CASES RELATING TO PROFFESSIONAL
MISCONDUCT AND CONTEMPT OF COURT
favour. P.D.Gupta was the Advocate of Vidyawati. When the suit was
pending P.D. Gupta purchased part of the disputed property for Rs.18000
and sold it for 34000 immediately.
Mr. ramamurthi filed a complaint against P.D.Gupta before the
Delhi Bar Council alleging professional misconduct. The main allegation
is that he has purchased the part of the disputed property from his client
during the pendency of the suit.
Since the enquiry was not completed within one year the matter
is transferred to the Bar Council of India. After hearing both the parties,
the Bar Council of India passed an order suspending him from the
practice for a period of one year. The court held that a shadow of undue
influence is present when an Advocate buys property of his own client.
Against this order P.D. Gupta filed an appeal before the Supreme
court. In the appeal his main contention was that his client or her legal
heirs has not filed any complaint regarding professional misconduct, and
the enquiry conducted based on the complaint by some other person is
wrong.
The Supreme Court did not accept this argument and passed the
following orders.
1. Any person shall file a complaint regarding professional
misconduct against an Advocate.
2. Bar council shall enquire into the allegation of professional
misconduct, though the complaint is filed by a stranger, because,
the Bar council is concerned with the conduct of Advocates.
3. The order passed by the Bar Council of India is confirmed.
5.Robtas Singh v.Commissioner, Agra Division
(AIR 1997 All 278)
The commissioner of Agra Division, and certain other officials
have violated the order of Allahabad High Court dated 6-9-93.
Consequently the Allahabad High court issued notice to show cause why
action cannot be taken against them for contempt of court. In this matter
the additional standing counsel of the State Mr. Kazim appeared for the
officials.
An objection was raised by the State law Officer and some
criminal Advocates, regarding the appearance of the govt.Standing
councel for the accuseds in the contempt of court proceedings.
setting aside the second order of the U.P. Bar Council. Further Supreme
court held that the gravity of the misconduct committed by him is so
serious and the punishment of suspending him from practice for 3 years
is not sufficient and ordered the removal of his name from the roll of
Advocates.
CHAPTER V
ACCOUNTANCY FOR LAWYERS
PURPOSE OF MAINTAINING ACCOUNTS BY LAWYERS
A business enterprise must keep a systematic record of its daily
transaction. It is a legal duty. It helps to know where its stand and
adjudge its performance. This systematic recording of transactions is
known as accounting. Since legal profession is a trade, lawyers are under
duty to maintain systematic accounts relating to the profession.
The basic purpose of accounting is to present a complete
financial picture of the Advocates profession. This can be done with the
help of two financial statements like (i) Profit and loss account and (ii)
Balance sheet showing the assests and liabilities.
It is necessary to maintain proper accounts to calculate the
following (i) Annual Income (ii) Income Tax (iii) Professional Tax (iv)
Amount due to the client or amount due by the client.
1. To calculate the annual income : To calculate the
annual income of the Advocate from the legal
profession, it is necessary to maintain proper accounts
of his income from the profession. Maintaining this
account is useful for Advocates also. By knowing his
Annual Income , he can take steps to improve his
profession.
2. To Calculate income Tax : Advocates are liable to Pay
Income tax for the income derived from the profession.
In order to calculate the amount payable as income tax,
he has to maintain proper accounts relating to his income
and expenditure.
To calculate the taxable income he is entitled to deduct
certain expenditure like rent, salary, telephone bill and
other administrative expenditure. For this purpose also
he has to maintain proper accounts.
3. To calculate professional tax: Every six months the
advocates are liable to pay professional tax to the
Government. The amount of professional tax varies
depending on the income. In order to calculate the
At his office.
(ii)
(ii)
Rent Account.
(iii)
Salary Account.
(iv)
Library Account.
(v)
(vi)
(vii)
Electricity Charges.
(viii)
Conveyance Charges.
(ix)
(x)
At the beginning of the ledger book the index may be given with
the name of the different heads of account and their respective pages for
easy reference.
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