Académique Documents
Professionnel Documents
Culture Documents
A.Vincent Arputhom
CONTENTS
I PROFESSIONAL ETHICS
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1-34
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8
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10
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24
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25
25
27
28
29
29
31
32
32
33
34-47
35
35
36
37
38
40
41
41
43
44
45
45
48-57
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49
49
50
52
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53
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56
58-68
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60
61
62
63
64
65
66
67
69-73
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70
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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 16th 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
allowed to Practice in those courts. (In 1826 these 3 Supreme Courts
were abolished and in that place High Courts were Created).
In 1865, the Special Rights Act has conferred the right to the
Madras, Bombay and Calcutta High Courts to frame rules for the
recognition of Advocates and for preparing the Advocates roll.
In 1879, the legal practioners Act has conferred the similar
power to the other High court Were allowed to practice in that high
court. As per this Act Persons studied Law in England Were called as
Advocates and persons studied Law in India were called as Vakils.The
Vakils were not allowed to practice before the High Courts.
In 1923,an Advocates Committee was constituted under the
leadership of Sir. Edward to study the legal profession and to make
suitable recommendations to improve the legal profession. This
committee has recommended for the creation of Bar Councils in each
High Court and allowing the Vakils to practice before the High Court.
Accepting the recommendation Bar Council Act was passed in
1926. This Act was paved the way for the creation of Bar Councils in
each High Courts. But the Bar Council was not empowered to enrole
Advocates, that power was retained with the High Courts. The function
of the Bar Council was only advisery and the rules and regulations made
by the Bar Council shall be brought into force only after the concurence
from the High Court.
After Independence: After Independence in the year 1951 an
Advocates Committee was constituted under the chairmanship of Justice
C.R. Das to study the problems in the legal profession and make suitable
suggestions to remedy such problems.This committee has made the
following recommendations.
1. All India level, one Bar Council namely Bar Council of India
and in each state, State Bar Council should be created.
2. Power to enrole Advocates and disciplinery power against the
Advocates should be entrusted with the Bar Council.
3. Advocates should be allowed to practice throughout India
without any discrimination.
The fifth Law Commission also scrutinized these
recommendations and recommended for the implementation of these
executive
committee,
enrolment
committee,
9. Prepare legal aid programmers and allot separate funds for the
implementation of such schemes.
10. Prepare Schemes for helping the poor Advocates and allot
separate funds for the implementation of such schemes.
11. Grant recognition to the law colleges.
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.
3. He must have passed 3 years law course (regular study from the
university after graduation) or 5 years integrated Law course
after 10 +2. If the law degree is from any Foreign University
then it must be a recognized degree, for the Advocates Act by
the Bar Council of India.
4. He should pay an enrolment fee as may be prescribed by the
State Bar Council.
5. He must fulfill such other conditions as may be prescribed by the
State Bar Council for the purpose of enrolment.
No upper age limit for enrolment is fixed in the Advocates Act.
So, after 21 years at any age one can enroll as an Advocate.
In Indian Council of Legal Aid and Advice V. Bar Council of
India (AIR 1995 SC 691) the Bar Council of India by using the rule
making power conferred under S.49 of the Advocates Act made a rule
prohibiting persons above 45 years to enroll as an Advocate. This rule
was challenged as beyond the powers of the Bar Council. The Supreme
Court also accepted this agreement and struck down the said rule as
ultravires to S.49. The court held that the said section empowers the Bar
Council to frame rules only to regulate the legal profession and using this
power the Bar Council cannot make rules prescribing qualifications for
enrolment.
In Sudeer v. Bar Council of India (AIR 1999 SC 1167) the Supreme
Court held that the Bar Council of India Rule prescribing one year preenrolment training apprenticeship, after the law degree, is ultra vires the
rule making power of the Bar Council of India. In this case also the
Supreme Court held that Bar Council cannot make rules prescribing
qualification for the enrolment. Qualifications are already prescribed in
the Advocates Act.
Disqualification of enrolment
The following persons are disqualified to enrole as an Advocate
(S.24A).
1. A person convicted for an offence involving moral turpitude.
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
According to S.17 of the Advocates Act, every State Bar Council
shall prepare and maintain a roll of Advocates. It shall contain two parts.
First part containing the list of Senior Advocates and the second part
containing the other Advocates.
10. He shall appear in the court in the prescribed dress and his
appearances shall always be presentable. He shall not wear bands
or gown in the public places.
11. He shall not practice before a judge if he is related to him.
12. He shall not act or plead in any matter in which he has pecuniary
(monetary) interest.
13. He shall not appear for any organization, institution, society or
corporation if he is the member of the executive committee of
such organization, institution, society or corporation.
Duty to the Clients (Rule 11-33)
A client is entrusting a case with an Advocate because of his
trust and confidence on him. In order to honour this trust and confidence
the 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 fee 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
honorable 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 defense counsel in
placing the relevant material evidence to prove the innocence of
the accused.
12. He shall not do any other business. An advocate who inherits any
family business may continue it, but he should not personally
participate in the management of the business.
Duty to Render Legal Aid
Justice is a great interest of man on earth and the lawyer is the
high priest in the shrine of justice. The quality of justice, to a great
extent, depends on the moral quality, integrity and fairness of the
lawyers. To develop their moral qualities, the lawyers must actively
participate in the legal and aid programs and give free legal services to
the poor and the needy people. This is one of the important duty an
Advocate ows to the society.
If a lawyer personally knows that his client is unable to pay
because of poverty then he must represent the case without demanding
any fees from him.
Similarly, when the court appoints a lawyer to defend an
accused, it is his moral obligation to accept such order and discharge his
duties towards the court and the accused by the best use of his
knowledge and ability.
Lawyers shall co-operate and actively participate in joining
hands with the local area legal services Authorities in organizing Lok
Adalats and Legal Aid programs and conciliation proceedings.
Restriction on other Employments
Bar council of India Rule-40 restricts the Advocates not to
personally engage in any other business other than the legal profession.
The reason for this restriction is that he should fully concentrate in the
legal profession and elevate it to the high stand . If he is allowed to do
other business then that may lower down the standard of this profession.
If he join as a full time salaried employee either in the
Government or in the private sector he must request the Bar Council to
remove his name from the Advocates Roll.
Though there is general restriction on other employment, there is
no restriction for engaging himself in the following works.
He can be a Sleeping partner in a business, if in the opinion of
the State Bar Council that business is not inconsistent with the
profession.
36.
37.
38.
39.
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
2. The Disciplinary Committee shall fix a date for enquiry and shall
send notice to the concerned Advocate and the Advocate General
of the State.
3. The Advocate charged with the professional misconduct shall
appear in person or through the Lawyer. Similarly, the Advocate
general also appear in person or through a lawyer.
4. The Disciplinary Committee should complete the enquiry
proceedings within one year from the date of receipt of the
complaint. Due to any reason, if the enquiry was not completed
within one year then the complaint should be referred to the Bar
Council of India for its disposal.
5. During the pendency of the enquiry if the term of the
Disciplinary Committee comes to an end then the successor
committee shall continue the enquiry.
6. After the enquiry due to the lack of majority opinion or
otherwise if the Disciplinary Committee was unable to take a
final decision then they shall seek the opinion of the chairman of
the bar council and shall pass the final order following his
opinion.
Disciplinary Committee of the Bar Council of India
Organisation: Same as the Disciplinary committee of the State
Bar Council (see P.30).
Powers: The Disciplinary Committee of the Bar Council Of
India shall having the following powers.
1. It shall enquire the charges of the professional misconduct
against Advocates whose name is there in the roll of any of the
State Bar Council.
2. Enquire the complaints in which the Disciplinary Committee of
the State Bar Council has not completed the enquiry within one
year from the date of receipt of the complaint.
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).
Rs.30/- within the period specified in the notice, the proceedings against
him shall be dropped.
If the Advocate does not pay the amount or fails to show
sufficient cause, a committee of 3 members constituted by the State Bar
Council in this behalf, shall decided the matter and pass suitable orders.
Tamilnadu Advocates Welfare Fund
Tamilnadu Advocates Welfare fund Act,1987 empowers the
state Bar Council to create a fund called Tamilnadu Advocates Welfare
Fund. This fund is different from the fund which every state Bar Council
creates under S.44(A) of the Advocates Act.
Membership : Persons enrolled as an Advocate in the Tamil
Nadu Bar Council and a member in any one of the recognized Bar
Association in TamilNadu shall become as a member in this fund.
Subscription: For getting the benefits from this fund one has to
pay the following subscription.
1. Entry fee of Rs.200/- (one time payment) at the time of Joining.
2. The annual subscription for those who are having less than 10
years of standing is Rs. 200/3. The Annual Subscription for those who are having less than 20
years of standing is Rs. 100/4. Life membership fee for senior Advocates is Rs. 10,000/- for
others Rs. 2000/5. In the vakalath and other documents filed in the court 5 rupees
Advocates Welfare Fund Stamp should be pasted. The amount
so collected will be remitted in this fund.
Benefits: For the members of this fund following benefits will be
given.
1. Those who are members in this fund for minimum 5 years, if
retires from the profession, will be paid pension as per the
Schedule attached in this Act.
2. If the member dies his nominee is entitled for Rs. One lakh. If
the diseased member is receiving pension either from
Government or from other Organisation then this benefit will not
be given.
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.
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
the Delhi Bar Association passed a resolution boycotting that court due
to his improper behavior towards the lawyers. Taking advantage of this
boycott resolution the defendant filed a petition asking the judge to
transfer the case,suo motou, to another court because his advocate will
not appear in the court In the future. The transfer petition was dismissed.
This order was challenged before the High court. The High
Court stayed the proceedings and the case was adjourned for long period.
Aggrieved by the stay of proceedings and the long adjournment the
plaintiffs filed an appeal before the Supreme Court.
In the appeal the Supreme Court gave the following orders.
1. If any councel does not want to appear in the court, that too for
justifiable reasons, the case should be returned to the party so
that the party can engage in another councel.
2. Retaining the case without returning it to the client and
abstaining from conducting the case in the court amounts to
professional misconduct.
3. The court should not adjourn the case on the ground of
Advocates strike or Advocates decision of boycott the court.
4. During the court hours even if the Advocates are not appearing
the court should proceed with the trial of the case.
5. Court should not yield to the pressure tactics of boycott or any
kind of brow beating.
6. Judicial officers should behave cardialy towards the Advocates.
3.Supreme court Bar Associatin v. union of India
(AIR 1998 SC 1995)
V.C.Mishra, then the Chair Man of the Bar Council of India was
punished by the Supreme court for contempt of court and he was
suspended from the practice for a period of 3 years.
The charges against him was that in the court by using insulting,
disrespectful and threatening language he has threatened the judges. His
act has hurt the judges and he has acted in such way to abstruct the
course of justice.
The Supreme Court Bar association challenged this order and
raised the following issues.
1. The Supreme Court while dealing with the contempt
proceedings cannot suspend Advocate from the practice.
2. Bar Council alone can pass the order suspending an Advocate
from practice.
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.
In support of their claim they submitted the Legal Remuneration
Manual of U.P which deals with the duties of a Govt. Advocate. It says
that the Government Advocate shall not appear for the defense or any
criminal or quasi-criminal case; nor shall he advise any party against the
prosecution in any criminal case. After hearing the objection the
Allahabad high Court passed the following orders.
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 amount of professional tax he has to maintain the
proper accounts.
4. To Ascertain the amount due from the client or due to the
client: The account relating to the amount received from the
client and the amount received on behalf of the client from
others or from the court should be properly maintained. Then
only the amount due from the client can be calculated. This will
help not only the client but also the Advocate.
client remaining in his hands, after the completion of the proceeding. The
balance shall be returned to the client.
Rule 30: A copy of the client account shall be furnished to him
after getting the necessary copying charges from him.
Rule 31: An advocate shall not make any agreements whereby
clients funds in his hands are converted into loans to the advocate.
Rule 32: An Advocate shall not lend money to his client for the
purpose of conducting the case.
Rules Relating to Accounting Under Income Tax Act.
Under the Income Tax Act, every lawyer is required to maintain
the following books of accounts and other documents to enable the
Assessing Officer to calculate his total income (i) cash book (ii) Receipt
Voucher (iii) payment voucher (iv) journal (v) ledger. The accounting
year is 1st April to 31st March next year.
1. Cash book : It is the book in which the amount received by
the Advocates from the clients and others and the amount spent for the
clients are written. This book is useful for the Advocate to know the
amount in his hand on each day.
2. Receipt Voucher : It is the document prepared for recording
the receipt of money by cash or cheque. When an Advocate received
money from the client, the Advocate has to issue a receipt to the client.
Advocate shall maintain receipt books with serially numbered receipt
forms in duplicate. The original receipt should be given to the client and
the duplicate shall be retained by the Advocate.
3. Payment Voucher : Payment vouchers are used to record
such payments for which receipts are not obtainable from the person to
whom such payments are made. For example bus fare, auto fare, court
fees, stamps, refreshment expenses etc. In such cases the Advocate
signature in the payment voucher and the signature of the person to
whom payment is made may be obtained.
4. Journal : Journal is the book of first entry or original entry. In
the journal the transactions are recorded in the order of their occurrence.
It should contain the following details (i) Date of Transactions (ii)
Account to which the transaction relates (iii) Amount to be debited, (iv)
Amount to be credited (v) Explanation of the transaction.
5. Ledger : The transactions recorded in the journal are to be
posted to the separate heads of account in other book called as Ledger.