Module 1

A birds eye view of the Syllabus :

Introduction : Legal profession has become an

inextricable part in the administration of justice. But the utility of legal profession can be justified by maintaining public confidence in the fidelity , honesty, and integrity of the individual members of the profession. Strict adherence by the members of the profession to the high tradition of the bar , the code of conduct and etiquette is necessary . A new entrant needs guidance.

 Ethics : is nothing but the idea of what is right and

what is wrong in conduct . Practice of ethics made the legal profession noble and honourable. But it is felt that the greatness , nobility and honour of the legal profession has degenerated fast in recent times. The reason is gradual disappearance of the code of ethics from the barand the profession is treated as a pursuit for livelihood and accumulation of wealth.

 Law is a learned profession

A lawyer is not learned if his learning is confined only

to the law reports and the statutes. No other profession touches human life at so many points. Advocates are the guardians of the two most precious things in life justice and liberty.

 Genesis of Advocacy : the institution of trained

lawyers is of ancient origin in Europe as well as in the East.---They are engaged by the litigants to appear on their behalf in the law courts. Greece : a person is allowed to appear gratuitously in court to speak on behalf of a litigant , if he is a friend or relative and who is unable to conduct his case due to illness or otherwise.their also existed the institution of speech composers for fees for their clients .

 Rome : the patron and client relationship existed in

early times to defend the client in court when his liberty and property are threatened. Jurist Consults : gave advice out of court gratuitously to litigants for gaining influence and popularity. Agents : charge fee for appearing in court for legal assistance . England : for centuries legal knowledge was a monopoly of priests. They alone had the privilege of appearing in causes on behalf of the clients.

 Henry 3rd : in 1181 appointed persons of clerical

training as attorneys.but their functions were not exactly defined. Edward one : the order of serjeant (a man of law, one who serves, derived from a French expression Serviens) was created to represent the litigants in courts . Inns of court were established for training apprentices in law to become serjeants.Inner Temple , Middle Temple , Lincolns Inn , & Grays Inn .

 Legal education imparted at the four Inns since 1852. A representative Bar Committee set up in 1833 was

replaced by the General Council of the Bar in 1894. Its chief duty is to lay down rules of professional etiquette In England there exist two types of legal practioners. Barristers derive power to practice from Inns of Court --not accept contentious business with out the intervention of a solicitor. Solicitors roll is kept by the incorporated law society. Both are governed by the same core duties:

 Fairness, competence, loyalty, confidentiality,

reasonableness and service to the poor. The concept of oath was common to Europe. Lawyers who are allowed to plead shall be men of probity, character, and known repute. A lawyer defective in his duty shall be discarded, rendered incapable of ever after pleading, and moreover punished in proportion to his offense.

 USA: Till 1875, there was no formal academic

requirement to become a lawyer. Hoffman .J of Baltimore wrote the first regulatory code justice should be the only motivation of lawyers --lawyers must have humility regarding their own knowledge of the law. --must quote the law objectively with honour. --lawyers reasoning should be objective and creative. The American Bar Association approved the canons of professional ethics in 1908 which continued till 1960s .

 The six traditional core duties identified by ABA are:

1. litigation fairness 2. loyalty 3. confidentiality 4. competence 5. reasonable fee and 6. public service. Like begets like therefore , purity of the Bench depends upon the purity of the Bar.A degraded Bar inevitably produces a degraded Bench.

Legal Profession in India Development

Ancient India : the institution of men learned in law who represent litigants in courts is of ancient origin. A mention is made to that extent in the writings of Narada, Vrihaspati, Katayana, Manu, & sukra. Appearance is permitted only to a relative or appointed agent. Charging of fee was considered dishonourable. But the modern legal profession in India owes its origin to British system.

 First British Court in Bombay: the history of modern

legal profession in India starts with the establishment of first British Court in Bombay in 1672 Mayors Courts : also known as Crown Courts established in the three presidency towns in 1726 up held : 1. the need of attorney to protect his clients 2.the right of the court to dismiss an attorney guilty of misconduct.

 The Supreme Court:

- The Regulating Act 1773-the Crown was empowered to establish the Supreme Court . - Established at Fort William, Calcutta in 1774 - In Madras in 1801 and - In Bombay in 1823 - These Supreme Courts were authorised to admit, curtail and remove advocates and attorneys at law - to appear and plead for suitors before them.

- Advocates are English and Irish Barristers & advocates

-

of Scotland. Attorneys are British solicitors. The S/Cs administered only the common law & equity Courts in Mofussil Areas : The Bengal Regulation 1793 recognised the law as a public profession organised & controlled by the govt. in India. Power to regulate legal practitioners in Companys Courts .

- power to appoint & dismiss vakils in the Sadder Dewani Adalut. - for appointment as a vakil the candidate should be a Hindu or Muslim; - take an oath of faithful discharge of professional responsibility; - a separate Bar appointed for each court; - daily & regular attendance of vakils in their respective courts was obligatory; - leave on medical grounds

 The scale of fee : prescribed for different kinds of cases

- a retainer fee of four annas for first appearance and receipt for the same. - litigant to furnish security for payment of vakils dues. The Legal Practitioners Act 1846 : made three changes in the law relating to legal practitioners. -1. Barristers hither to confined to the Supreme Courts were permitted to plead in any of the Companys Courts -2. the office of vakil was thrown open to all, if qualified - 3. liberty to settle the fees by private agreement

 The LP Amend. Act 1850: allowed pleaders of civil

courts to defend the accused in criminal cases. The LP Act 1853: no compulsory attendance to court except at hearing of a cause. Establishment of the High Courts: the Indian High Courts Act 1862 - in Calcutta, Bombay and Madras Later in Allahabad(1886), Patna (1916) & Lahore (1919) These H/C benches were designed to combine S/C & Sudder Court traditons.each H/C was given power to make rules to enroll advocates, vakils & attorneys.

 Kinds of legal practitioners: As time passed , a

hierarchy of lawyers of varying degrees, privileges and disciplinary jurisdictions came into being. They are: -1. Advocates English barrister & attorney or solicitorsome H/Cs allowed non barristers also as advocates. -2. Vakils Indian law graduates a vakil of 10 years was allowed to sit for the advocates examination. -3. Pleaders- non law graduates. Ie mere graduates -4. Mukhtars-Matriculates-in Subordinate Courts-due to dearth of law graduates & to provide legal assistance at cheap fees.

-5. Revenue Agents practice confined to revenue offices controlled by the chief controlling revenue authority. -6. Income Tax Practitioners-not covered by the LP Act In course of time efforts were made for uniform Bar. Indian Bar Committee (Chamier committee) was appointed in 1923 to submit a proposal for - Constituting Indian Bar , on all India basis or provincial basis - To signify the position of Bar Councils vis--vis H/Cs

- Removal of existing disparities between legal practitioners in particular barristers & vakils. The Bar Councils Act, 1926: - a step towards unification of the Indian Bar - provided for establishment of bar councils by H/Cs - did not provide for all India Bar Council on the ground of impracticability -conferred power on bar councils to regulate admission of advocates - to regulate discipline of advocates

- to regulate legal education & examination The Legal Practitioners Fees Act 1926: - conferred a right on legal practitioner to sue for his fee - legal practitioners liability to be sued for failure to discharge professional duties. Advocates Act 1961: -the govt. of India appointed All India Bar Committee in 1951 under the chairmanship of justice SR Dass of SCI -the IAB submitted its report in 1953 - the Parliament incorporated recommendations of

Of the Committee in the Advocates Act 1961 -the AA has 1. unified & codified the legal profession -2. made the profession autonomous in the management of its affairs both on all India as well as on state basis.

Practice of Law- A Right or Privilege

All rights attached to the office of advocate under law

and usage are his privileges. - practice of law is not a natural right of persons possessing legal Knowledge - privilege of audience in court on behalf of the party Sec. 340 CrPC lays down that -every person accused of an offence or against whom proceedings are instituted under CrPC in criminal court may of right be implead by a pleader.

 Order 3 Rule 1 CPC lays down that

- any appearance , application or act in any court may be made or done by the party in person or by agent or pleader on behalf of the party if the law does not prohibit . Art. 22(2) declares - an arrested person shall not be denied the right to consult and to be defended by a legal practitioner of his choice.

 Sec. 30 Advocates Act 1961 lays down that

- subject to the provisions of the Act, - every advocate in the common roll shall be entitled as of a right to practice throughout India 1. In all the courts including the Supreme Court, 2. Before any Tribunal or person legally entitled to take evidence and 3. Before any other authority or person if a statutes says that a person shall be heard by himself or in person , he cannot appear by agent or counsel.

 An Advocate has privilege to act

- Exercise independent judgment as to how he shall

conduct the case - Authority to make admission - Abandon an issue or part of the claim - Compromise - Refer the matter to arbitration Unless expressly prohibited by the client.

 Words spoken by an advocate in his professional capacity

in the course of a judicial inquiry or in the examination of a witness are privileged Provided the advocate acted in good faith & did not go beyond what was fairly necessary Not entitled to protection against defamation u/s 499 IPC An Advocate has privilege of exemption from arrest , under civil process , other than the process of contempt of court , while going to the court ,attending the court, or returning from the court. S. 135(2) CrPC available even to the client

 An advocate in actual practice is exempted from

serving on as a juror or assessor to enable the advocate to attend to his duties with promptness S.320 CrPC. No liability for negligence but liable for his clerks misconduct , negligence or fraud . privilege to occupy the seats provided for the advocates when attending to the judicial activity.

Practice of law is a profession, not a business

Advocacy is not a vocation for private gain but is an

institution created by the state for public good. advocacy is a branch of administration of justice and not a mere money making occupation.the Canadian code of legal ethics. in fixing fees it should never be forgotten that profession of law is a branch of administration of justice and not a mere money- making tradecanon 12 of ABA.

 Distinguishing features

--organization of its members for the performance of their functionsnot simply a collection of individuals --maintenance of certain standards , intellectual and ethical for the dignity of the profession. --subordination of pecuniary gains to efficient service. Thus , in business the sole object is to make money and there is no social obligation except to himself. In profession money making is incidental

 However , the present trend appears to be more &

more commercialization of legal profession .high fee charged ambulance chasersthe profession is bound to suffer. Legal profession can be called a noble profession only when lawyers give effect to fiat justicia ruat coelum let justice be done even though heavens fall. In Dr. Haniraj L. Chulani V. Maharashtra & Goa 1996 the S/C held that Art. 19 (1) (g) does not include legal profession.

Solicitors firm whether an industry

The distinguishing feature of an industry whether for

production of goods or for rendering of services is that -- cooperation between the capital & labour ie employer & his employees --it must be direct & essential. As defined u/s 2 (j) of the ID Act 1947, industry means any business , trade , undertaking , manufacture or calling of employees and --includes any calling of service , employment, handcraft or industrial occupation or avocation of workmen

 Thus , industry as defined in ID Act has wide import. But the S/C in National Union of Commercial

Employees V. MR Meher , Industrial Tribunal 1962 Observed that in a solicitor's firm there are different categories of servants such as clerks , stenos , menial staff each assigned separate duties and functions . -- there is no doubt a kind of cooperation between the solicitor and his employees. --but that cooperation has no direct or immediate relation to the professional service rendered by the solicitor .

-- therefore a solicitors firm carrying on the work of an attorney is not an industry .issue of payment of bonus. However, it was overruled in Bangalore Water Supply & Sewerage Board V. A.Rajappa 1987 -- when cooperation is direct & essential it is industry -- but in liberal professions like medicine, advocacy and clergy, the service is special or peculiarintellectual & educational equipment ,which is indirect & inessential not an industry. The correct position is that a solicitors firm is an industry if it employs 10 or more persons.

 According to S. 2 (c) of the ID Act industry does not

include any activity being a profession practiced by an individual or body of individuals less than 10. In NK Bajpai V. UIO 2012--- the appellant was a class 1 officer in the Indian Customs & Central Excise Service - he became a member of CEGAT which later became Central Excise & Service Tax Appellate Tribunal after demitting office , being a law graduate , enrolled & started practice -- S.129 (6) CESTATA stipulates that on demitting office a person shall not be entitled to appear before tribunal

 Challenged as violative of Arts. 14 & 19(1)(g) & it shall

not be applied to him retrospectively. Held right to practice is not only a statutory right but also a fundamental right ,subject to reasonable restrictions. --S.129 (6) as amended in 2003 is not unreasonable --it is not retrospective in operation but retroactive

Module 2
Admission and Enrolment of Advocates:
Eligibility for enrolment : S. 24 a person shall be

eligible to be admitted as an advocate on a state roll , if he is --1. a citizen of India --2. completed the age of 21 years --3. obtained a degree of law, issued by an Indian university & recognised by the BCI --4. pays the requisite fee & stamp duty

 A pleader or a vakil & who is a law graduate can also

enroll his name in any State Bar Council S.25 application shall be made in the prescribed form to the State Bar Council Within whose jurisdiction the applicant proposes to practice. S.26 Disposal of application the SBC shall refer every application received for enrolment to its Enrolment Committee. The Committee will proceed to dispose application on merits .

 It can reject the application for enrolment after

seeking opinion of the BCI & after giving notice to the applicant . If misrepresentation , fraud or undue influence is detected, the name of such advocate be removed from the roll after giving an opportunity of being heard. Refusal to enroll shall be communicated to all the State Bar Councils. S. 27 A rejected applicant shall not be enrolled by any SBC except with previous consent of that SBC or BCI .

 SBC may remove from its roll: S. 26-A

a. the name of an advocate who is dead or b. an advocate from whom a request has been made. S. 28 A SBC has power to frame rules regarding enrolment - such rules become enforceable if approved by the BCI Disqualification : S. 24-A -- a person convicted of any offence involving moral turpitude --convicted under Protection of Civil Rights Act

--Dismissed or removed from office or employment of the State --disqualification under 1 & 2 ceases 2 years after release from such conviction Case law 0n enrolment: In Haniraj L Chulani V. Bar Council of Maharashtra & Goa 1996 The S/C held that the rule restricting the entry of a person already in other profession is not arbitrary not violate Arts. 14 , 19(1) (g) & 21

 In Indian Council of Legal Aid & Advice V. BCI 1995

It was held that debarring enrolment of a person

completing the age of 45 on the date of enrolment is beyond the rule making power of the BCI. In V Sudheer V. BCI 1999 it was held that preenrolment training & apprenticeship are ultra vires In Anees Ahmad V. University of Delhi 2002 the Delhi H/C held that no full time law teacher drawing regular salary can enroll as an advocate.

 In Smt. Manjula . BR & others V. Karnataka SBC 2002

the petitioners studied law in Rajiv Gandhi College of Law , Malleswaram , Bangalore, affiliated to Bangalore University denied enrolment on the ground that their college was not having BCI approval of affiliation held not necessary denial of enrolment illegal of S. 24 of advocates Act. All India Bar Examination: In BCI V. Bonnie Foi Law College, 2009 , the BCIs petition for a direction to check diminishing standards

in professional legal education in India is accepted by the S C. --on the recommendation of a three member Committee the S C directed the Central Govt. to introduce a qualifying exam. to practice law in India. --As a result the BCI in exercise of its power u/s 49 (ah) framed Rules Part 6, Chapter 3 making AIBE compulsory --the duration of the exam. is for 3.30 hours of 100 objective questions with open book

-- the exam. is conducted in 9 languages at 27 cities. Strangely , V. Sudheer case is neither reversed nor distinguished . Senior Advocate : S. 16 The Act recognises senior advocates & other advocates If the SC or a HC is of the opinion that -an advocate by virtue of his ability , standing at the bar or special knowledge or experience in law, with his consent , he may be designated as a senior advocate.

 Professional obligations of senior advocates: chap. 1

part 4 of the BCI Rules framed u/s 49 (1) (g) --1.he shall not file a vakalatnama or act in any court; --2. shall not appear without a junior advocate --3. shall not accept drafting work --4. shall not accept a brief directly from a client --5. free to make confessions or give undertakings on behalf of his clients on instructions from junior --6. should not appear in lower Courts

 Advocate on Record of the Supreme Court:

Eligibility : should be an advocate on the roll of any SBC

Should be attached with a senior advocate on record of

the SC at least for two years. Should pass the exam. conducted by the SC. Should file a declaration along with fee that he will engage a registered clerk & maintain book of accounts -- qualified to act, appear & plead

 Fixation of Fee: Advocates fee is one of the most controversial issues . Unlike other professionals ,who serve the clients

interest , advocates also act as officers of the court in the administration of justice. And Access to justice is a Constitutional right. Keeping in view the above, different kinds of fees have been devised for charging the clients. They are Fixed Fee: called standard fee--the advocate stipulates a fixed amount for services rendered in a case.

 -it is stipulated before the advocate renders legal

service. it is charged in routine legal matters . -expenses ought to be indicated separately. In India it is the same norm with some variations : - one fee up to admission further fee if the case goes for final hearing additional fee for time longer than expected all these come under lump sum fee

 Hourly Fee: many charge by the hour

-it varies, based on the nature of the a. establishment b. matter involved c. the experience of the advocate etc -the advocates maintain time sheets & the work done -in advanced countries hourly billing is very common -in India it is in limited practice.

 Per Hearing Fee:

-Normally charged by senior advocates in superior courts -Separate fee chargeable for effective hearing and adjourned hearing Contingency Fee: - CF is based on the outcome of the case - If the client loses, the advocate does not get paid anything but if the client succeeds ,the advocate gets paid a predetermined percent of damages or compensation recovered .-ie fee contingent on the success of the case

 CF is prohibited in most countries of the world In India the BCI rules of ethics prohibits advocates

charging contingency fee ABA in 1937 adopted the canon of professional ethics thus the lawyer should not purchase any interest in the subject matter of the litigation which he is conducting However , in 1994 the ABA issued a formal opinion holding that contingency fee contracts are legally permissible . limited to tort cases & not to domestic cases

 The advantage of contingent fee is that the chance of

carelessness & negligence of advocate while conducting his clients case is completely eliminated The demerit is that it acts as an incentive to frivolous litigation as the advocate loses objectivity . Retainer Fee: --a fee paid to ensure the availability of an advocate and to ensure that he do not appear for the opponent, even if the retaining party does not engage him. --blocking retainer is objectionable

 Referral Fee:

--is given a as compensation for reference of a case --in sum & substance, it is touting --a division of fee by an advocate & a third party amounts to misconduct -- not permitted in most of the countries. -- however, division of fee between advocates in proportion to their services to the client is allowed. --again a senior advocate paying one - third of his fee to the briefing lawyer is recognised

 Fee Chargeable by Indian Legal Practitioner: The erstwhile Legal Practitioners (Fees ) Act , 1926

allowed the right to settle & to sue for fees If not settled , to calculate in accordance with the law Under the Act a practitioner was liable to be sued in case of any loss or injury to the client due to negligence in the conduct of duties But the said Act did not lay down any code of conduct for charging fee. It was repealed by S. 50 (5) of the Advocates Act 1961

 No statute is enacted to regulate advocates fee.

But the BCIs Professional Conduct Rules regulate it .

-- an advocate is bound to accept any brief in the courts .. .at a fee consistent with his standing at the Bar & the nature of the case . Special circumstances justify refusal to accept a brief. R 11 --an advocate shall not accept a fee less than the fee taxable if the client is able to pay the same . R.38 -- free legal assistance within an advocates economic condition is one of the highest obligations. R.46

 Fixation of reasonable fee

An advocate should not be obliged to charge the same

fee from all clients, irrespective of their capacity to pay. Higher fee may be charged from a client whose financial position is strong . Though there is a need for standardization of fee ,it is impracticable & impossible It cannot happen in any profession where excellence makes a difference & the advocates are in different age groups.

Elements of Advocacy
Advocate : is derived from Advocare , which means to

summon to ones assistance . one called to assist a party in the conduct of a suit. One who pleads for another . Advocacy : is the pleading of a cause in a court in accordance with the rules laid down for the purpose. Elements of Advocacy : Hard school of life: there is no royal road to advocacy --no book can teach it --It can only be learnt in the hard school of life

--no one quality of head or heart makes an advocate . --the whole personality counts . Changing Ideals : -- the ideals of a good advocate , like the ideals of a progressive society, are ever changing -- the standards vary from time to time & from place to place so do they vary according to the nature of work -- advocacy in civil cases is not the advocacy in criminal cases -- again advocacy before the judge is not the same advocacy before the jury.

 A Human Affair:

-- the raw material that comes before the Court is filled with passions , struggles, rivalries, desires,& emotions --the terrain is difficult & cannot be chartered easily --yet there is need for guidance through unwritten lessons of practical life in court. Chronology, Candour & Clarity : --are essential qualities of good advocacy Chronology : ensures the natural way of stating the case going by events ie calendar of dates, of themes, pursuits, personalities etc.

 Candour :

--demands that the advocate should tell the best as well as the worst. --lack of candour spoils the most brilliant arguments --the Court has a right to expect it , otherwise justice will be hampered . Clarity: --is the first & last requisite of an advocatethere is no substitute for it.

 Avoidance of personalities:

--one of the earliest lessons which an advocate has to learn is to avoid being dragged into personalities. -- feelings aroused by the irate judge, opposing council, witness & sometimes by over zealous junior, who thinks that his leader is missing a point. Know the brief & the law : --a true advocate has not only to master the facts of his brief but the law that such facts raise

 Keep swimming in the tide of judgments:

--common mistake to avoid is irrelevant citations --which may not support his arguments -- the advocate should learn that no two cases are similar --random citation of precedents do not help his case . Irritating the Judge: --The elementary rule is that not to tire or irritate the judge -- arguments, no doubt belong to the Bar, but what is forgotten is that the decision belongs to the Judge .

--tenacity is good but nagging is fatal. Opening the case: --a case well stated in the first breath is a case more than half argued --important to know how to begin a case --the advocate has to discover the central point in every case just as sun is surrounded by the planets When to Stop: -- he is a great advocate who knows when to stop --never sit down with altercation with the Bench or opponent

--select the most psychological movement to stop Wide Reading on every branch of Knowledge : --one who reads only law cannot become good advocate --a great advocate requires to know a good deal of human knowledge. -- a well equipped mind is a great asset for an advocate. --jack of all trades but master of none . Sense of Humour: --life of an advocate is not lived in perpetual excitement --many are the dull moments of his life

--to save himself from the dull moments he needs a sense of humour which ; --make him laugh at his own inadequacies --ward of the judges anger --make him forgive his opponent -forgive his client making a mess of things in the witness box --he must develop an expectant attitude An advocate should work like a horse & live like a hermit -- Lord Eldon Behave like a prince with a touch of audacity if you can trust yourself

 Quest for the Just Word :

--advocacy remains the art of persuasion by words --using of words properly in proper details is the master key of lawyers success --words are good servants when used carefully but very bad masters when used recklessly --the same words spoken by different advocates leave different impressions , because of the personality of the person who uses them .

 Multiple Loyalties:

--the advocate has to pulsate to the tune of multiple loyalties . He is to be loyal --to the great profession of law to which he belongs --to his clients whose case he advocates --to his opponent who is his learned friend --to the Court before whom he practices for upholding truth & justice It is not easy to reconcile all these loyalties as they compete one another what is needed is a dignified harmony .

 Ethical Problems : an advocate faces many EPs in his

life --Eg. No advocate is entitled to express his own personal belief in his clients innocence or guilt. -- he shall not launch serious allegations of fraud , dishonesty , & misconduct without himself being fully satisfied . -- if he does so, he steps outside the role of an advocate. --An advocate shall ever bear in mind Fiat Justicia Ruat Coelum

Seven Lamps of Advocacy

Abbot parry J. in his book on the seven lamps of

advocacy mentions ; -- Honesty -- Courage -- Industry -- Wit -- Eloquence -- Judgment & -- Fellowship as the seven lamps ,which bring success of an advocate at the Bar.

 To which KV Krishna Swamy Aiyer added Tact as an

additional lamp. Honesty: -- professional ethics is nothing but an honest & truthful life --the character of an advocate should be beyond suspicion & he should cultivate truth , honesty & excellence --though morality, truthfulness & honesty does not pay in the beginning , ultimately it brings reputation which is highly paying to the profession .

 Courage : -learning begets courage

-- if an advocate thinks that his clients case is good one , he should plead for it with enthusiasm , vehemence & courage. Industry: - giant in industry instead of intellectual giant -- neither intellectual brilliance nor genius can be a substitute for hard work & industry --no man has succeeded in the legal profession by his intellect without industry --industry is fortunes right hand

 Wit :

--To lighten the darkness of advocacy , the lamp of wit is needed; -- in particular when the court & the brother advocates feel boredom, drowsy& indifferent with the arguments Eloquence:-fluency , expression Fellowship : -- in legal profession , irrespective of age , ability, & experience at the bar, equality of human behavior is needed

--the advocates appearing against each other might fight as adversaries do in law , but they must eat & drink as friends Judgment : -- an advocate should be able to read the mind of the court , clients , opponent counsel appropriately & should adopt the course of action. Tact : is a nice perception in seeing & doing exactly what is best in the given circumstances It cannot be properly be defined but its absence is always felt.

Module 3
Bar Councils : The AA 1961 envisages to constitute a Bar Council for

each of the States and In some cases one Bar Council for two or more States & Union Territory. The Act also envisages to constitute a BCI The BCI acts as an apex body for keeping control of the State Bar Councils Composition of State Bar Councils : S.3 A SBC shall consist of ex-officio & elected members

 Advocate General/s of the State/s concerned shall be

the ex-officio member/s. Elected Members : electorate of SBC not exceeding 5000---15 members not exceeding 10,00---20 exceeding 10,000------25 Members are elected in accordance with the system of proportional representation by means of single transferable vote from among advocates on electoral roll of the SBC

 Half of the elected members shall be advocates with 10

years standing at the Bar . Members elect the Chairman & Vice Chairman Every SBC shall prepare electoral roll & keep it revived from time to time Term of office: 5 years from the date of publication of result However , they continue in office until successors are elected.

 Powers & Functions of SBC: S. 6

--to admit, prepare & maintain the roll of advocates --to dispose of cases of professional misconduct against advocates on its roll . --to promote & support law reform. --to conduct seminars & organise talks on legal topics & publish journals & papers of legal interest. --to organise legal aid to the poor --to manage & invest the funds of the Bar Council. --to provide for the election of its members

 A SBC may create

--a Fund for giving financial assistance to the indigent disabled & other advocates & --a Fund for giving legal aid or advice It may receive any grants, donations, gifts or benefactions Constitution of Committees: S.9 1. Disciplinary Committee : --one or more. each shall consist three two shall be its members & one practicing advocate who is not a member the senior most of the three shall as chairman.

2. Legal Aid Committee: S.9A --one or morea minimum of 5 to a maximum of 9 of its members. 3. Standing Committees: S. 10 a. Executive Committee:- consisting 5 of its members b. Enrolment Committee: - 3 of its members. Power to Punish for Professional or other Misconduct: --S.35 on receipt of a complaint, if the Bar Council has reason to believe that the advocate on its rolls is guilty of professional or other misconduct , refers the case to its DC for disposal.

 The DC shall fix a date for hearing of the case

Serve a notice to the advocate concerned & Advocate General of the State

After giving an opportunity of being heard to both

pass any order , namely -- a. dismiss the complaint --b. reprimand the advocate . --c. suspend the advocate from practice for a period --d. remove the name of the advocate from the roll

 S.36 B-- the SBC shall dispose of the matter received u/s

35 with in one year from the date of complaint, -- the matter shall stand transferred to the BCI if the DC of SBC fails to dispose it with in one year. --must furnish reasons. Appeal to BCI : S. 37 any person aggrieved by the order of SBC or the Advocate General may prefer an appeal to BCI with in 60 days of the communication of the order. The DC of BCI after giving an opportunity of being heard to the concerned pass an appropriate order

 Review by SBC: S. 44

-- The DC of SBC either on its own motion or otherwise Review its order within 60 days of the date of such order -- however, Such review order of SBC will be effective only if approved by the BCI Appointment of Secretary & Staff: S.11 --The SBC shall appoint a Secretary, may appoint an accountant & such other staff.

 Maintenance of Accounts: S.12

--The SBC shall cause its books of accounts maintained & audited by auditors qualified under Companies Act. -- Audit of accounts at the end of every financial year, but before 31st December of the next year. --SBC shall send a copy of its accounts along with auditors report to the BCI & for gazette publication --The BCI in turn shall cause to send it to the Central Govt. & for publication of Gazette of India

Composition, Powers & Functions of the Bar Council of India

Composition of BCI: S.4 the BCI shall comprise of

--one member elected by each SBC, only members with 10 years standing at the Bar are eligible for election --the Attorney General & Solicitor General of India as ex officio members. --the Chairman & Vice Chairman of the BCI shall elected by its members --they hold office for the period for which they are members & their successors assume office.

 Powers & Functions : Ss. 5 , 7

-- BCI is a body corporate having a perpetual succession & a Common Seal. -- has power to acquire & hold property both movable & immovable -- has power to Contract & --has right to sue & liable to be sued by its name. S.5 Functions : S. 7 -- to lay down standards of professional Conduct & etiquette for advocates

--to lay down the procedure to be followed by both DCs --to safeguard rights, privileges & interests of advocates --to promote & support law reform. --to deal with & dispose of matters referred to it. --to exercise general supervision & control over SBCs --to promote & lay down standards of legal education in consultation with the universities imparting legal education & SBCs --to recognise universities imparting legal education

--To conduct seminars & publish journals & papers; --to organise legal aid to the poor; --to recognise foreign law degrees on reciprocal basis; --to manage & invest its funds; --to provide for the election of its funds; --to do all other things necessary for discharging the said functions . --may create one or more funds for giving financial assistance to indigent etc. advocates, legal aid & to establish law libraries S. 9A

-- the BCI may effect transfer of the name of an advocate from one SBC to another SBC on application received from such advocate . S. 18 -- appointment of one or more DCs. S.9 --Executive Committee : -- consisting 9 of its members --Legal Aid Committee: -- comprising 10 5 from its members & 5 non members co-opted S.10 -- Appointment of Secretary, Accountant & other Staff. Maintenance of Accounts: S.12BCI shall cause maintenance of books account & audit by auditors every financial year

--shall send a copy of the accounts along with auditors report to --the Central Govt. & -- for publication in the Gazette of India before 31st Dec. of the next financial year. Rule Making Power of BCI : Ss. 15 (2) & 49 -- U/S 15 without prejudice to generality of BCIs foregoing power it may provide rules for -- Election of its members , right to vote & preparation & revision of electoral rolls

-- manner of election of its office bearers ; --their powers & duties; --filling up of casual vacancies; -- the summoning & holding of meetings; --the management & investment of its funds etc. S. 49 of the Act empowers the BCI to make rules for discharging its functions under the Act. Some of those rules are -- qualifications & disqualifications for membership & voters at an election to SBC;

-- the manner of preventing any advocate from entering his name in more than one State roll; -- manner of determining seniority among advocates; --the qualifications required for admission to a course of degree in law ; --the conditions subject to which an advocate shall have a right to practice ; --the Standards of professional conduct & etiquette ; CJI --the Standards of legal education to be observed by universities & inspection of universities ;

-- procedure to be followed by the DCs -- restrictions on senior advocates in terms of practice --the form of dress or robes to be worn by advocates having regard to the climatic conditions on CJIs approval --the fees to be levied in respect of any matter under the Act --general principles for the guidance of SBCs. -- foreign law degrees by non citizens & their admission as advocates subject to approval by the central Govt.

 Central Govts. over riding power : S. 49A

--any rule made by the Central Govt. under the Act shall have primacy over rules framed by the Bar Councils -- such rules need approval of parliament . Power to punish for professional or other misconduct: --S. 36 an advocate whose name is not entered in any State roll & --the BCI either on its own motion , or a report by the SBC or an application of any interested person withdraw the case from the SBC & dispose it

 Appellate Power: S. 37

--any person aggrieved by an order of the DC of SBC under sec. 35 or -- the Advocate General of that State concerned may prefer an appeal to the BCI ; --Within 60 days of communication of such order. -- BCI shall dispose of the matter after giving an opportunity of being heard to the concerned -- any aggrieved party against the order of BCI or the AG may file appeal in SC within 60 days of such order. S.38

 Power to call for Records & Review : Ss. 48-A & 48-AA

within 60 days of order by SBC power to issue directions to the SBC or any of its committees for proper discharge of its functions. S 48B No suit or legal proceedings shall be instituted against any Bar Council , Committee thereof or a member of it for any thing done in good faith under the Act or rules made there under .S. 48.

Module 4 Ethics of Legal Profession

Ethics : means a science of morals or Philosophy concerned with human character &

conduct Standards of morals applied to ordinary citizens shall equally apply to legal practitioners Legal Ethics : Is that branch of moral science which lays down certain duties Which an advocate owes to the court , to his client , to his brethren , to the public & to himself

 The province of law differs from ethics Ethics condemns every kind of falsehood Where as law does not condemn all falsehood , but

condemns only such falsehood that affects good governance What may be legally wrong that may be ethically right & vice versa Everyday an advocate is confronted with so many legal & ethical problems Surmounts with wisdom & great scholarship.

Duties and Obligations of Advocates

No statutory codification of professional ethics in

India But the BCI u/s. 49(1) (c)of AAct Chap. 2 part 6 & some SBCs framed rules of professional conduct & etiquette Duties & obligations of an advocate are many & multifold . Advocates Duties to the Court: An advocate woes certain duties to the court & to the presiding judge irrespective of his success failure of the case . They are

Duty to maintain respectful attitude : however , it does not mean that an advocate should be meek & subordinate he must always be bold , fearless & independent in the courthe must not tolerate judicial corruption & incompetence. 2. Duty not to exhibit friendship with judges : avoid marked attention & unusual hospitality to a judge no testimonial dinners to judges by an individual advocate a loan by an advocate to a lawyer is improper should not communicate privately on the merits of a pending case.
1.

3. Duty not to mislead the court: (to be fair & candid) should be careful to state the truth to the best of his knowledge 4. Duty not to exploit the ignorance or negligence of the opposing advocate : litigation is not a game between advocates 5. Duty not to adopt dilatory tactics: 6. Duty not to advice quickie divorce: 7. Duty to equip himself : 8. Duty to be punctual to the Court

9. Duty not to practice before his relatives : S. 30 A.Act. 10. Not to stand as a surety for his client 0r certify the soundness of a surety 11. Shall not wear bands or gown in other public places 12. Shall not act or plead in a matter of his own pecuniary interest 13 Shall not act as a mere mouth piece of his client 14 Shall not influence the decision by illegal or improper means 15 Not to interrupt the judge , except in the interest of justice 16 Duty not to interrupt the opponent every now & then

Advocates duties to Client

Welcome his clients presence in the chamber The client must not feel that his presence is unwanted Give a patient hearing to the client Return of clients moneys received from any source Prompt reply even if the decision is unfavorable Rules 11 to 33 of BCI 1. Duty to maintain scrupulous fidelity 2. Duty not to accept any compensation or advantage from

others 3. Duty to give frank advice regarding the merits of the case 4. Duty to do his utmost for the client

6. Duty not to represent the conflicting interests 7. Duty not to divulge confidential communications . Sec. 126 IE Act no advocate shall be permitted to disclose any communication made to him in the course of & for the purpose of his employment, unless a. with his clients consent b. any communication made in furtherance of any illegal purpose c. any fact discovered in the course of his employment that a crime has been committed since his employment.

8. Duty regarding stipulation of fee

9. Duty not to contract for a share in the fruits of the

litigation 10. Duty not to lend to the client except in emergency 11. An advocate should not ordinarily withdraw from an engagement once accepted

Duties to opponent and other Advocates

Duty not to deal with the clients of others R34 2. Duty to enforce all legitimate promises made to opposite party R35 3. Duty to avoid self advertisement & solicitation of professional employment R36 no circulars , touts , inspiring interviews , news paper photos etc. the name-plate or sign-board should be of a reasonable size R36 4. Shall not permit his name to be used for unauthorized practice of law by any agency R37
1.

5. Shall not accept a fee less than the fee taxable when the client is able to pay the same .R38 6. Shall not enter appearance where there is already a vakalatnama or memo of appearance filed by another advocate R 39 7. Duty to be candid , fair , & courteous clients are litigants & not advocates any ill feelings existing between clients must not be allowed to influence the advocates --- do as adversaries do in law ; strive mightily , but eat & drink as friends Shakespeare in Taming of the Shrew

Duties to the Public

An advocate enjoys certain privileges
Right to advise clients & to appear for them in court Obligations:

Duty to see that those admitted to the bar are properly qualified by character, ability & training 2. Duty to see that those who prove unworthy of the privileges are deprived of them. 3. Free legal aid duty to represent without charge those unable to pay
1.

4. Duty not to stirrup litigation Should an advocate undertake only such cases as he believes them to be just civil matters-- two schools of thought the correct position is- yes -- criminal matters Art. 22(1) In Sheela Barse V. Maharashtra 1983 a journalist interviewed 15 women prisoners Devammma & Puspapaeen complined custodial violence Miss A R Desai , Director , college of social work , N irmala Niketan , Bombay, was directed to enquire & report

 An advocate Mr. Mohan Ajwani under the guise of

defending, duped & defrauded two women prisoners , a Thai & German national held guilty of professional misconduct if found correct . Observed thus Restriction on other employment : Rules 47 to 52 1. An advocate shall not personally engage in any business but he may be a sleeping partner if it is not inconsistent with dignity of the profession R 47 2. An advocate may be a director or chairman of the Board of Directors of a company with or without fee . R. 48 he cant be Managing Director or Secretary

3. However , a law officer in the central , state or any PSU service is permitted to enroll as advocate 4. An advocate succeeding to family business by survivorship can continue that without active participation. R. 50 5. An advocate can review Parliamentary Bills for remuneration , edit legal text books at a fee , do press vetting for news papers , coach pupils for legal exams. Set & examine question papers, engage in teaching broadcasting R 51 any part-time employment with the consent of SBC R52

Advocate and Witness

An advocate should not assume that all witness are liars &

to be treated alike he should not disregard the feelings of a witness or embarrass or bully them Must not misuse the privilege of cross examination the object of cross exam. is --to destroy or weaken the testimony given in chief , --to elicit something in favour of the cross examiner or --to discredit the witness The advocate has no right to disgrace or bully a witness by putting offensive questions family life, private affairs etc.

 The art of cross exam. is not to examine crossly The questions which affect the credibility of a witness by

attacking character , not relevant to the actual enquiry, ought not to be asked Advocate must not tutor his witness certain amount of guidance to witness by counsel is necessary --but the advocate has no right to instruct the witness what he should say -- the court has right to get independent testimony of the witness

--Inspiring a witness amounts to fraud on the court --The advocate guilty of such fraud is liable for misconduct Advocate must not tamper with witness bribing a witness for influencing his testimony is unethical the witness fee is meager & out of proportion in such cases if the witness are paid, it does not amount to bribing Advocate as a witness ethics does not approve this dual capacity choose only one role

 Defamation:

-- an advocate enjoys a very extensive freedom of speech before the court while appearing in a case --the words spoken by an advocate in defense of his client , however defamatory they may be of the other party , are not actionable , if they are -- Relevant to the matter in hand & spoken in good faith -- In Rahim Bakash V. Bochcha Lal 1929 held the advocate is not absolutely privileged & a suit for defamation is maintainable whether his clients co. was not the biggest in the town the opposite counsel retorted , yes & it is also the most dishonest one

Misconduct Professional or other

Misconduct : A wide expression & not capable of precise definition Misconduct is a transgression of some established &

definite rule of action , a forbidden act, a dereliction of duty, unlawful behavior , willful in character, improper or wrongful behaviorBlacks dictionary Its synonyms are misdemeanor, impropriety, mismanagement , offence but not negligent or carelessness.

 Thus any conduct which

1. renders a person unfit for the exercise of his profession or 2. is likely to tamper or embarrass the administration of

justice is misconduct Misconduct implies an act done willfully & with wrong intention Unprofessional acts, even though such acts are not inherently wrongful Misconduct & infamous conduct are sometimes used synonymously disgraceful or dishonourable conduct

 The expression professional or other misconduct is

found in sec. 10 of the Indian Bar Councils Act 1926 Again sec. 35 of the A Act 1961 contains the same If an advocate departs from the standard which the profession has set for itself & demands of him , he is liable to disciplinary action. An advocate may be removed from the rolls if the proved misconduct renders him 1. unworthy to remain as member of the honourable profession or 2. unfit to be entrusted with the professional responsibility .

 Examples professional or other misconduct Advocate misappropriating the money received as

court fee LC Goyal V. Suresh Joshi 1999 Seeking repeated adjournments for postponing examination of witness present in the court NG Dastane V. Shrikant SS 2001is Misleading the Court by citing a judgment which has been overruled by a larger Bench of the H/C or S/C Orissa V. Nalinikanta 2004 Refusal to return the files of his client RD Saxena V. BP Sharma 2000

 Strike by advocates
If an advocate on the ground of strike , abstains from

appearing in a Court in which he holds Vakalat , he is guilty of professional misconduct , breach of contract & breach of trust BL Wadehra V. State 2000 Del. Advocate attending the court with fire arms -- UP Sales Tax Service Association V. Taxation Bar Ass. 1996 A mere negligence unaccompanied by any moral delinquency may not amount to professional misconduct

 Authorities empowered to punish for professional or

other misconduct. The SBCDC -- On a complaint or suo motu U/S 35 ; Review S. 44 The BCIDC -- on a complaint or suo motu S. 36 & S. 36-B --Appeal S. 37 ; Review S. 44 ; Revision S. 48- A The Supreme Court --Appeals S. 38

Procedure: On receipt of a complaint or suo motu If the SBC or BCI has reason to believe It is a barrier against frivolous complaints & to prevent harassment of an advocate actuated by mala fides . that any advocate on its roll has been guilty of professional or other misconduct , it shall refer the matter to its DC for disposal The SBC may transfer the matter from one DC to another DC of its own S. 35(1-A)

 Powers of DC: S. 42 The DC shall have powers of a civil court under CPC

-- summoning & enforcing the attendance of any person & examining him on oath ; -- requiring discovery & production of any documents ; -- receiving evidence on affidavit ; -- requiring any public record or copies of it from any court or office ; -- issuing commissions for the examination of witness or documents

 However , the DC cant require the attendance of

-a. a presiding officer of a court without the previous sanction of the High Court & -b. any officer of a revenue court without the previous sanction of the State Govt. The DC shall enforce summons through the civil court having jurisdiction The DC shall fix the time , date & place of hearing The DCs order shall be subject to approval by the chairman of that Bar Council

 The DC of SBC may make such order as to costs of

proceedings before it as it may deem fit & S. 43 Such order is executable as if it were the order of a HC Procedure in making complaint against advocate -- BCI Rules Part 7 -- a complaint against an advocate shall be in the form of a petition duly verified & signed as required under CPC R. 1 --if a complaint is not in English , a translation in English shall be filed -- every complaint shall be accompanied by prescribed fee of Rs 100/-

 The secretary of the Bar Council may

-- require the complainant to remove any defects & -- call for any records necessary & -- register the complaint & place it before the Bar Council for order as it may deem fit to pass. R 2 -- complaint once made, cant be withdrawn for any reason except as provided under sec. 35 Notice to the Advocate -- the registrar shall serve a show cause notice to the advocate R. 3

-- notice to a party not appearing by advocate shall be sent to the address as furnished in the complaint -- through messenger or by regd. post ack. due -- notice may also be served through any civil court. -- if not served a copy shall be fixed at a conspicuous place in the office of the bar council & also at the residence of the advocate R.5 -- the cost of notice shall be borne by the complainant

-- the parties can appear in person or by advocate R. 6 -- the BC or its DC may at any stage of the proceeding appoint an advocate as amicus cure on payment of such fee -- if the parties fail to appear before the DC it will proceed ex parte --ex parte proceedings may be set aside on sufficient cause being shown within 60 days of such order R. 7 -- if the complainant dies the proceedings shall continue --on the other hand if the advocate charged with misconduct dies the proceedings will be dropped

-- proceedings before the DC are essentially quasi criminal in nature -- therefore , the benefit of doubt is given to the advocate facing charges Judicial pronouncements on misconduct 1.Harish Chandra Tiwari V. Baiju 2003 --an advocate of UP SBC respondent engaged him in a money suit in land acquisition Rs 8118 deposited in the court advocate withdrew on application did not pay to Baiju SBC could not dispose within one year

--the matter stood transferred to BCI under sec. 36 B the advocate filed a compromise petition & a receipt for the amount alleged to have been signed by Baiju which he rejected & they were proved to be forged documents -- BCI found the advocate guilty of professional misconduct & suspended him from practice for 3 years -- took the cheque in his own name from the land acquisition officer & did not pay it to Baiju for 11 years -- in appeal the SC held that the findings of BCI does not require any interference but increased the punishment to removal of the advocates name from the State roll

 The SC observed

-- among the different types of misconduct envisaged for advocates, misappropriation of clients money must be regarded as one of the gravest ; --it also amounts to breach of trust ; --there may be a justification to award lesser punishment had the delinquent advocate returned the clients money before the commencement of the disciplinary proceedings ; -- there is acute need to cleanse the legal profession from those who are prone to misappropriating the clients money.

2. Bar Council of AP V. Kurapati Satyanarayana 2002 --KS, an advocate practicing in Eluru WG Dist. --he was engaged by one Gutta Nagabhushanm to file a civil suit in the court of Addl. Dist. Munsif Magistrate -- the suit is decreed for Rs 14,600/--in execution proceedings the advocate received the said amount on different dates but did not pay it to his client --in October 1996 GN lodged a complaint with ADMM against KS , who forwarded it to the secretary , AP SBC for necessary action

 The SBC found the advocate guilty of professional

misconduct & directed removal of his name from the roll In appeal the BCI while agreeing with the findings of SBC held that KS was not guilty of any misconduct though he might have been negligent that falls short of misconduct, because -- the advocate never refused to repay the amount -- he made part payment before the matter reached BCI -- he could not make payment as he utilized that amount for his treatment being a heart patient

--the advocate had no intention to defraud his client -- he had already paid total amount to GN In appeal by the APSBC the SC reversed the BCIs order & confirmed the order of the SBC The SC observed --the BC plays a dual role of a prosecutor through its Executive Committee & as a quasi judicial authority through its DC -- being a prosecutor the SBC is an aggrieved party -- misappropriation of clients money is one of the gravest misconducts

3. RD Saxena V. Balaram Prasad Yadav 2000 -- RDS was an advocate of Bhopal in the roll of MP SBC --Appointed to MP State Cooperative Bank Ltd. as legal advisor 1990 1993 -- the bank requested RDS to return the case files --instead of returning the case files RDS forwarded a consolidated bill for Rs 97,10o/ as balance of his fee -- RDS also stated that files would be returned only after settling his dues --the bank denied any liability outstanding --the case files never returned

--BPS , the managing director of the bank lodged a complaint of professional misconduct against RDS with MP SBC in 1994 --the SBC transferred the mater to BCI under sec. 36B as it failed to dispose within one year. -- the BCI found RDS guilty of professional misconduct -- suspended him from practice for 18 months & imposed a fine of Rs 1ooo/-- directed to return all the case bundles without any delay

--The BCI did not decide lien over litigation papers In appeal the SC observed -- the advocate does not have a lien , for his fees , over litigation papers -- Refusal to return files amounts to misconduct -- however, considering that this question has been decided first time & there was a bona fide belief of lien, a mere reprimand would be sufficient in the interests of justice . Appeal allowed

-- the SC further observed that --case files can not be equated with goods u/s 171 IC Act -- and they can not amount to goods bailed u/s 148 -- a litigant must have freedom to change his advocate when he feels -- the obligation to return is not only legal but a moral imperative --the remedy available to such an advocate is a suit for recovery of unpaid fees

4. UP Sales Tax Service Association V. Taxation Bar Association , Agra . 1996 --one Mr. Sattidin was the Deputy Commr. (Appeals)of Sales Tax, Agra & a member of appellant service Asso. -- another Mr. Ramesh Chandra Gupta was advocate & president of the respondent Bar Association --Gupta along with two other advocates met sattidin in his chamber & accused him of demanding illegal gratification in the discharge of his duties as appellate authority

-- allegations & counter allegations have been made against each other resulting in widespread violence -- the advocates called boycott of courts & gave representations to the district magistrate , governor & the advocate general for action against Sattidin --the respondent Bar Association filed a writ petition for orders against Sattidin restraining him from exercising his functions as appellate authority --the HC granted the order prayed for -- in appeal u/ Art. 139 A by the appellant the SC observed

-- after verifying the service records of Sattidin the SC held that allegations of corruption were not proved -- the HC had no power to issue a writ or order prohibiting a statutory authority from discharging its functions -- the HC had no authority to transfer pending cases before Sattidin to any other authority --The advocates were not justified to go on strike -- Gupta attending to court with a licensed revolver to shoot in self defense is not befitting to the dignity of the legal profession & is a disturbing feature

5 .Shambu Ram Yadav V. Hanuman Das Khatry 2001 --Yadav , the appellant filed a complaint of professional misconduct in the SBC of Rajasthan against the respondent advocate, Khatry -- Khatry wrote a letter to his client Mr. Mahant Rajgiri in a civil suit to send him Rs 1o,ooo/- to bribe the judge for winning his case --the letter also stated , if Mahant can personally win over the judge there is no need to send money -- the letter is not disputed --Khatry pleaded not guilty, as he only tried to protect the interest of his client by bringing the facts to his knowledge

-- no money was sent to Khatry -- the judge concerned was terminated on account of illegal gratification --the SBC held the advocate guilty of professional misconduct & suspended him from practice for two years --in appeal the BCI enhanced the punishment & ordered that Khatrys name be removed from the rolls & payment Rs 5000/- towards costs -- the review u/s 44 was allowed & the punishment was modified to mere reprimand by the BCI -- on the ground that the advocates letter was only a reply to his clients query & he is 80 years old with 50 years standing having joined the profession in 1951

 In appeal the SC observed

--the BCI did not properly exercise its power of review --Khatry was totally unfit to be an advocate having written such a letter -- punishment lesser than permanent debar cant be imposed --it is the duty of the Bar Councils to ensure that advocates adhere to the required standards --the punishment has to be commensurate with the gravity of the misconduct. --appeal allowed with costs enhanced to Rs 10, 000/-

 6. PD Gupta V. Ram Murthi 1998

Brief facts : one SK Das died in Jan. 1980 leaving

behind extensive property --one vidyawati claiming to be the sister & only legal heir of SKD filed a petition U/S 276 Indian Succession Act in the Dist. Court of Delhi for the grant of letters of administration of the estate in Feb. 1980 --the complainant Ram Murthi & two others also claimed the properties of SKD as his heirs through wills

--they also filed petitions U/S 276 of the Succ. Act. --Vidyawati also filed suits for injunction & declaration through PDGupta who was her advocate in all the cases --Ram Murti complained that PD Gupta & his son in law purchased the litigation property from vidyawati at a cheap rate & disposed it to a third party for a huge profit The Delhi Bar Council could not dispose of the complaint within one year, hence the matter stood transferred to BCI u/s 36-B

--the DC of BCI found the advocate guilty of professional misconduct & suspended him from practice for one year -- on an appeal by the advocate the SC refused to interfere with the decision of the BCI 7. John D Souza V. Edward Ani 1994 --the appellant JDS was an advocate since 1942 enrolled in Karnataka state Bar Council & a family lawyer of one Mrs Mary Raymond --Mary Raymond got a will drafted by JDS & deposited it with him against a receipt

--Raymond changed her advocate JDS --the new advocate requested JDS for the will of his client which he denied --thereafter, Raymond got another will executed by her new advocate & made her son in law Edward Ani to be the legal representative for her estate --Edward Ani addressed two letters requesting JDS to return the will deposited with him by her mother in law --as the will was not returned Edward lodged a complaint of professional misconduct against JDS

 The SBC found the advocate not guilty as the complainant

failed to establish any prima facie case Edward made a revision petition to BCI , which found that there is a prima facie case & remitted the matter back to SBC for disposal The SBC again found JDS not guilty of professional misconduct In appeal, the BCI found the advocate guilty of professional misconduct & suspended him from practice for one year JDS prayed for stay of operation of the order to enable him to go for appeal The BCI granted for one month

 In appeal the SC found JDS guilty of professional

misconduct & vacated the stay observed that it is for the complainant to prove professional misconduct against the advocate which he proved. 8. Mahabir Prasad Singh V. M/S Jacks Aviation Pvt. Ltd. 1999 --the appellant filed a civil suit for recovery of possession of a building in ADJ Court , Tis Hazari , Delhi through his counsel --the respondents through their counsel filed objection & prayed for dismissal of the suit.

-- when the matter came up for hearing the respondents advocate submitted a petition for transfer of the case by the judge suo motu & -- he did not appear before that judge as the bar association of which he is a member passed a resolution to boycott his court -- the DJ dismissed the petition stating that there was no such provision under CPC --the respondents council thereafter filed a revision petition in the HC , which stayed further proceedings in the ADJS Court

--The appellant moved the SC u/Art. 136 against the orders of the HC --held 1. the HC committed grave error in entertaining the revision petition --2. if the advocate does not want to appear before any court for justifiable reasons the professional decorum & etiquette require him to give up the engagement --3. retaining the brief of his client & not appearing is un professional & unbecoming the status of an advocate --4. no court is obliged to adjourn the case because of the strike call given by an association of advocates

9. A Vs R (IBR vol. 25 (1) 1998) --facts in brief : R, the complainant had executed a sale deed of his house property situated in a village Dheeravalli in favour of one Lanka Samba Siva Rao with an option to repurchase the same & registered the same -- However, R continued to remain in possession & enjoyment of the house --The vendee LSS Rao, by taking advantage of the sale deed attempted to forcibly occupy the house in collusion with the police

--Then, R filed a suit for an injunction against LSSR by engaging the services of A as his advocate in 1985 --LSSR also filed a counter in the sub court of Gudivada by showing the sale deed as mortgage deed & also for the recovery amount. -- the complaint of R against A is that he did not prosecute the case diligently did not inform the progress of the case the fact of dismissal of the case for non payment of deficit court fee in 1986 was not disclosed to him

--his request in 1991 for the return of the case files & consent on vakalat for change of A as his advocate were rejected --But A blamed R for not submission of Court fee & denied all charges The SBC found A guilty of professional misconduct & debarred him from practice for one year. Observed thus -- 1.A should not have hesitated to walk out of the brief --2.it is unbecoming of an advocate to

a. Keep the client in darkness about the progress of

the case b. Cross examine the witness without instructions from the client c. Refusal to file a delay condone petition at the request of the client The appeal of A along with mercy petition of As daughter a young advocate were rejected by the BCI while confirming the order of the SBC Stay on operation of the order also vacated.

 In a leading case: Facts an advocate practicing in the SC wrote a post

card to the law minister of the State of Maharashtra in Jan. 1961 soliciting for professional work which amounted to a gross case of advertisement The matter was reported to the CJ of SC by the Secretary ,Govt. of Maharashtra for action fit & proper The registrar of the SC acting under the instructions of the CJ enquired The advocate admitted having written that post card which bore his rubber stamp & signature .

 The CJ constituted a three judge committee & placed

the matter Thereafter, constituted a Tribunal of the Bar for inquiry The advocate in reply to the notice stated that the complaint against him was malafide , false & misconceived denied any admission before the registrar However, once again admitted before the court that he sent a post card soliciting state briefs

 Held, the advocate sent post card soliciting briefs in

utter disregard of his position as advocate of the SC The advocate is either ignorant of elementary rules of professional ethics or has no regard for them He is a man of very weak moral fiber & mischosen his profession Suspension from practice for five years, the advocate fully deserves Let him learn that a lawyer must not be a liar

11. R. Janardhana rao Vs G. Lingappa 1999 -- GL the complainant , & opposite party gave a loan of Rs 3000/ to RJ an advocate on the strength of a post dated cheque -- the cheque bounced --DCs held the advocate guilty of professional misconduct & suspended from practice for one year -- in appeal the SC held that it is a case U/S 138 Negotiable Instruments Act , a civil remedy & not a case of professional misconduct

12. Sardul Singh Vs Pritam Singh 1999 --PS, the advocate suppressed the fact of his conviction for six months at the time of his enrolment -- on complaint suspended from practice for three years -- found presenting cases during the period of suspension by changing his name as PS Madan -- the SC held liable for full three years suspension afresh -- reversed the orders of SBC & BCI which merely admonished PS for second misconduct

Module 6 Bench and Bar Relations

Bench & Bar play an important role in the

administration of justice The Bench administer justice with the assistance of the Bar The Bench & Bar are both officers of the court Legal profession has been created not for private gain but for public good The role of the Bar --Advocates must maintain respectful attitude to the court

-- an advocate must conduct himself with dignity & self respect --he should not influence the decision of the court by any illegal or improper means --he should not privately communicate with a judge relating to a pending case --he should not use intemperate language & --He should not consider himself a mere mouth piece of his client --should not misguide the court & should make accurate statement of facts & should not twist them.

--if the courts or judges are not respected , it is complete death of the rule of law -- mutual respect is necessary for the maintenance of cordial relations between the Bench & Bar The role of Judges : --Judges play important role in the maintenance of rule of law which is essential for the maintenance of orderly society --there is no office in the state of such power as that of the judge judges hold power which is immensely greater than that of any other functionary

--the citizens life & liberty , reputation & property , personal & domestic happiness are all subject to the wisdom of the judges -- therefore, a strong , impartial & capable judiciary is the greatest need of a state --a judge must not allow himself to be subjected to any influence other than the influence of the law & justice --he must discharge his duties without fear or favour , affection or ill- will --a judge should possess a calm temper

--He should have patience & gravity of hearing --he should allow the advocate or the party fullest opportunity to present his case -- should be considerate & courteous towards the members of the bar --if the independent judiciary is the pillar of democracy, the bar is the foundation of the independent judiciary --the bar is the mother of the bench --it is for the bench to nurse & nourish the merits of the bar

--Judges should be considerate & courteous towards the members of the bar --should protect the privileges of the bar --should avoid interruption of the counsel in their argument & in the examination of witness --owes a duty to sit with a receptive mind --should avoid a controversial manner or tone As rightly stated by the SC in PD Gupta Vs Ram Murti administration of justice is a stream which has to be kept pure & clean & unpolluted

 Administration of justice is the concern of both the

bench & the bar Bar is the principal ground for recruiting judges Bar & Bench are complimentary to each other . The court has been conferred with the power to punish for its contempt & to prevent undue influence in the administration of justice