DUTIES TO THE CLIENTS

& CaseStudy of Shambhu Ram Yadav v. Hanuman Das Khatry

Submitted By: Benant Noor Singh Roll No. 19/11 Class: BA.LLB(H Submitted to !s. Harman Shergill "ni#ersity $nstitute o% Legal Studies &an'ab "ni#ersity( Chandigarh

Table of Con nt!

Table of Authorities...................................................................................................................ii Acknowledgment .....................................................................................................................iii Introduction .............................................................................................................................. 1 Legal Ethics & Significance...................................................................................................1 Areas of Application..................................................................................................................3 Ethics Of Legal Profession....................................................................................................... Meaning, Nature and Need.....................................................................................................5 Professional Ethics.................................................................................................................... ! Rules for conduct of an advocate........................................................................................... 6 "elationship between a Law#er and his $lient...................................................................... % A Fiduciar relationshi!......................................................................................................... " &hat are the duties of an Ad'ocate towards his $lient(.......................................................) #ut to acce!t $riefs and charge reasona$le fees.............................................................. % #ut to &a'e full and fran' disclosure............................................................................. ( #ut to ensure no conflict of interest................................................................................ ( #ut of care to client....................................................................................................... 1) #ut to &aintain confidentialit ......................................................................................1) #ut to act onl on clients instructions........................................................................... 1) #ut to the la* ................................................................................................................11 #ut relating to +ro!ert in dis!ute.................................................................................11 #ut relating to Fees and a&ounts.................................................................................. 1, Shambhu Ram Yadav v Hanuman Das Khatry ......................................................................1* Facts......................................................................................................................................1+rocedural .istor ................................................................................................................1/ssues.................................................................................................................................... 16 .oldings............................................................................................................................... 16 +ibliograph#............................................................................................................................ 1,

Table of "u#o$%&e!
$ases............................................................................................................................................. 1. 0handra She'har Soni v 1ar 0ouncil of Ra2asthan -. 6o''anda 1. +oondacha v 6.#. 7ana!athi 3. M. 8eera!!a v. Evel n Se9ueira *. Man2it 6aur v #eol 1us Service Ltd . +.#. 7u!ta v Ra& Murti !. Sha&$hu Ra& :adav v. .anu&an #as 6hatr %. 80 Rangadurai v # 7o!alan 31(%45 - S00 ,55...........1) 3,)115 1, S00 6))..........." 31(%%5 1 S00 556...........1) A/R 31(%(5 +&. 1%4.....1) 31(("5 " S00 1-" ..........1, 3,))15 6 S00 1..............131("(5 1 S00 4)%......%, 1)

Legislations.................................................................................................................................. Advocates Act 1(61......................................................................................................5, 6, 16 1ar 0ouncil ;f /ndia Rules.................................................................... 6, %, (, 1), 11, 1,, 14 0onstitution of /ndia 1(-(......................................................................................................%

ii

'()no*led+men,

At the ver outset / o*e & gratitude for the co&!letion of this !ro2ect to none else $ut <Al&ight <, =ho / $elieve is the s!iritual force $ehind all creation. / o*e the !erseverance re9uired to acco&!lish this !ro2ect to & teacher Mada& .ar&an Shergill *hose assistance and !ersuasion resulted in this fruitful endeavor. /t *as she *ho directed & ra&$ling thoughts. / &ust ad&it it *ould $e i&!ossi$le for &e to reach & destination *ithout her su!!ort. M !arents $lessing cannot $e e>!ressed in *ords and & fello* friends *ho gave &e strong &oral su!!ort during so&e critical &o&ents of failure and frustration fro& the $eginning to end of this !ro2ect. / also o*e & gratitude to ?/LS li$rar .

Benant Noor Singh

iii

-ntrodu(&o.
;ne<s !rofession is not an individual right. +rofession involves &ore than one !erson and is adorned *ith res!onsi$ilities. @he intensit of res!onsi$ilities var *ith the nature of !rofession one is involved in. =hen there is a grave sta'eholder involved in the !rofession, the res!onsi$ilities $eco&e higher. @he life of a !racticing la* er can $e distinguished for& other !rofessions in &ore than one *a . @he *a he conducts hi&self inside as *ell as outside the court deter&ines his !ersonalit .

Legal Ethics . /ignificance

@he *ord ethics is derived fro& the 7ree' *ord ethos AcharacterB, and fro& the Latin *ord &ores Acusto&sB. @ogether the co&$ine to define ho* individuals choose to interact *ith one another. /n !hiloso!h , ethics defines *hat is good for the individual and for societ and esta$lishes the nature of duties that !eo!le o*e the&selves and one another. @he follo*ing ite&s are characteristics of ethicsC D D D D D D Ethics involves learning *hat is right and *rong, and then doing the right thing. Most ethical decisions have e>tended conse9uences. Most ethical decisions have &ulti!le alternatives. Most ethical decisions have &i>ed outco&es. Most ethical decisions have uncertain conse9uences. Most ethical decisions have !ersonal i&!lications.

Legal !rofession is no$le !rofession. @he no$ilit of the legal !rofession is &aintained $ the adherence and o$servance of a set of !rofessional nor&s $ those *ho ado!t this !rofession. /t is 'no*s as legal ethics or the ethics of the legal !rofession. @he funda&ental of the legal ethics is to &aintain the o*ner and dignit of the la* !rofession, to secure a s!irit of friendl coo!eration $et*een 1ench and 1ar in the !ro&otion of highest standard of 2ustice, to esta$lish honora$le and fair dealings of the counsel *ith his client, o!!onent and *itness, to esta$lish a s!irit of $rotherhood *ith $ar. Advocates have the dual res!onsi$ilit of u!holding the interests of the client fearlessl *hile

conducting the&selves as officers of the court. Accordingl , the are e>!ected to adhere to the highest standards of !ro$it and honor. An advocateEs conduct should reflect their !rivileged !osition in societ *hich derives fro& the no$ilit of this !rofession. /n a nut shell, if ou are an advocate our service to the co&&on &an should $e co&!assionate, &oral and la*ful. @he rules &entioned in the 0ha!ter //, +art /8 of the 1ar 0ouncil of /ndia Rules on standards of !rofessional conduct and eti9uette shall $e ado!ted as a guide for all advocates in conducting &atters related to la*. @he relationshi! $et*een la* ers *ith his client is in the nature of fiduciar . .ence, trust $uilding is a significant !art of legal !rofession. La* ers are often tainted *ith allegations of corru!tions, cruelt and are &ar'ed as untrust*orth . @he /ndian 2udiciar has $een struggling for so&eti&e to &a'e legal !rofession $le&ish free. @hrough various !rovisions in the enact&ents and 2udicial decisions, la* ers charged *ith &isconducts are $rought into $oo's. @he Advocates Act, 1(61 through Section 45 !rovides that on finding an advocate guilt of !rofessional &isconduct, the State 1ar 0ouncil can refer the case to the #isci!linar 0o&&ittee *ho *ould ta'e actions accordingl . /t is heartening to o$serve that this !rovision has $een availed in a nu&$er of instances to !rovide relief to the harassed clients. @hough the nu&$er of co&!laints $rought into light is fe* co&!ared to the instances of &isconducts, et one can $e o!ti&istic a$out the outco&es of such co&!laints. @his !ro2ect re!ort deals *ith the #uties that an Advocate o*es to his 0lient and a case stud of Shambhu Ram Yadav v. Hanuman Das Khatry *here the A!e> 0ourt !er&anentl sus!ended the accused la* er for tainting the legal !rofession in s!ite of the *isdo& and e>!eriences gained over the ears.

'$eas of "//l%(a&o.
1. $onflict of Interest A la* er is at ti&es faced *ith the 9uestion of *hether to re!resent t*o or &ore clients *hose interestEs conflict. Fuite aside fro& his ethical o$ligations, the legal s ste&s of the *orld generall !rohi$it a la* er fro& re!resenting a client *hose interests conflict *ith those of another, unless $oth consent. -. $onfidential $ommunication /n AngloGA&erican countries 2udicial decisions, legislation, and legal ethics generall for$id a la* er to testif a$out confidential co&&unications $et*een hi&self and his client unless the client consents. +rovisions regarding confidentialit are also found in such diverse legal s ste&s as those of Ha!an, 7er&an , and Russia. /n countries in *hich the attorne Es o$ligation to !rotect state interests is given relativel greater e&!hasis, there &a $e a dut to disclose infor&ation *hen it is dee&ed to $e to the stateEs advantage. 3. Ad'ertising and solicitation @raditionall , advertising $ la* ers *as for$idden al&ost ever *here. /t *as a longstanding !rinci!le of legal ethics in AngloGA&erican countries that an attorne &ust not see' !rofessional e&!lo &ent through advertising or solicitation, direct or indirect. @he reasons co&&onl given *ere that see'ing e&!lo &ent through these &eans lo*ers the tone of the !rofession, that it leads to e>travagant clai&s $ attorne s and to unrealistic e>!ectations on the !art of clients, and that it is inconsistent *ith the !rofessional relationshi! that should e>ist $et*een attorne and client. A &ore $asic reason a!!ears to have $een the social necessit of restraining the &otive of !ersonal gain and of stressing the o$2ective of service.

*. 0ees /n !rinci!le, attorne s are ethicall en2oined to 'ee! their fees reasona$le, neither too high nor too lo*. Atte&!ts to control fees have included the !assage of general statutes designed to regulate co&!ensation for legal services of all sorts, as in 7er&an I the i&!osition of fees $ courts in contentious &atters, as in England and =alesI and the esta$lish&ent of advisor fee schedules $ the legal !rofession, as in 0anada, France, S!ain, and Ha!an. /n the ?nited States, local $ar associations so&eti&es enforced &ini&u& fee schedules through disci!linar la*s. . $riminal cases 1oth the !rosecution and the defense of cri&inal cases raise s!ecial ethical issues. @he !rosecutor re!resents the state, and the state has an interest not onl in convicting the guilt $ut also in ac9uitting the innocent. @he !rosecutor also has an ethical and, in considera$le &easure, a legal dut to disclose to the defense an infor&ation 'no*n to hi& and un'no*n to the defense that &ight e>onerate the defendant or &itigate the !unish&ent. .e &ust not e&!lo trial tactics that &a lead to unfair convictions, nor should he !rosecute &erel to enhance his !olitical !ros!ects. !. 1lobali2ation Although econo&ic glo$aliJation has contri$uted in i&!ortant *a s to the *orld*ide gro*th of the legal !rofession, it has also created the !otential for conflict $et*een different ethical traditions. /n Euro!e, for e>a&!le, standards of confidentialit for inG house counsel differ fro& those o$served $ inde!endent attorne s, a fact that has created difficulties for so&e ?.S.Gtrained la* ers *or'ing for Euro!ean fir&s. /n 0hina the ra!idl increasing &ar'et for legal services has attracted legal !rofessionals fro& de&ocratic countries, *hich generall do not share the 0hinese conce!tion of an attorne Es !u$lic o$ligations. /t is li'el that these 'inds of challenges *ill $e intensified $ the continuing li$eraliJation of the international legal &ar'et and $ the develo!&ent of technologies that ena$le la* ers to give advice fro& their offices to clients in distant and ver different 2urisdictions. !roceedingsI ho*ever, the ?.S. Su!re&e 0ourt held in 1("5 that such !ractices violated antitrust

0#%(s 1f 2e+al 3$ofess%o.

3eaning4 5ature and 5eed
+rofessional ethics are a set of nor&s or codes of conduct, set $ !eo!le in a s!ecific !rofession. A code of ethics is develo!ed for each !rofession. /t is defined as the ter& given to the code that is set u! $ the legal !rofessionals that details their &oral and !rofessional duties to clients.1

Si&!l !ut, !rofessional ethics for la* ers in /ndia la do*n a set of guidelines, *hich defines their conduct in the !rofession that is highl co&!etitive and d na&ic. /ndian la* re9uires la* ers to o$serve !rofessional ethics to u!hold the dignit of the !rofession. +eo!le are sur!rised *hen the hear that la* ers are e>!ected to follo* !rofessional ethics and that the are accounta$le for dishonest, irres!onsi$le and un!rofessional $ehavior. Further, &ost !eo!le do not 'no* that la* ers in /ndia can lose the license to !ractice if the are found guilt of unethical !ractices that tarnish the dignit of their !rofession. A la* er &ust adhere to the !rofessional nor&s, for fair dealing *ith his client and to &aintain the dignit of the !rofession. @he 1ar 0ouncil of /ndia is a statutor $od that regulates and re!resents the /ndian $ar. /t *as created $ +arlia&ent under the Advocates Act, 1(61,. /t !rescri$es standards of !rofessional conduct and eti9uette and e>ercises disci!linar 2urisdiction. /t sets standards for legal education4 and grants recognition to ?niversities *hose degree in *ill serve as a 9ualification for students to enroll the&selves as advocates u!on graduation. -

1 , 4 -

1lac' La* #ictionar ,ndedn Advocates Act 1(61 s Ibid s -(AdB Supra , 0h ///

4$ofess%onal 5#%(!
"ules for conduct of an ad'ocate
@he 1ar 0ouncil of /ndia has $een e&!o*ered to &a'e rules so as to !rescri$e the standards of !rofessional conduct and eti9uette to $e o$served $ the advocates 5. /t has $een &ade clear that such rules shall have a!!lica$ilit onl *hen the are a!!roved $ the 0hief Hustice of /ndia.6 /t has $een &ade clear that an rules &ade in relation to the standards of !rofessional conduct and eti9uette to $e o$served $ the advocates and in force $efore the co&&ence&ent of the Advocates AA&end&entB Act, 1("4, shall continue in force, until altered or re!ealed or a&ended in accordance *ith the !rovisions of this act. 0ha!ter // of !art 8/ of the rules fra&ed $ the 1ar 0ouncil of /ndia deals *ith the standards of !rofessional conduct and eti9uette. /t contains several rules *hich la do*n the standards of !rofessional conduct and eti9uette. @hese rules s!ecif the duties of an advocate to the 0ourt, client, o!!onent and colleagues, etc. @he rules &entioned in cha!ter // of !art 8/ of the rules of 1ar 0ouncil of /ndia include various duties of an advocate in relation to the !eo!le he has to co&e across in his da to da !rofession. @he duties given in the a$ove said cha!ter include C aB #uties to the 0ourt" $B #ut to the 0lient% cB #ut to the ;!!onent( dB #ut to 0olleagues1) @he #uties of an advocate to*ards his client shall $e discussed in detail in this !ro2ect.
5 6 " % ( 1) Supra , s -(AlBAcB Ibid s 4% +roviso ins. $ Act 6) of 1("4 10/ Rules ,.6.4.1 Ibid ,.6.4., Supra " ,.6.4.4 Supra " ,.6.4.-

6ela&onsh%/ bet*een a 2a*ye$ and h%s Cl%en,

/n /ndia, the counselEs relations *ith his client are !ri&aril a &atter of contract. @he relation is in the nature of agent and !rinci!al. @he agree&ent deter&ines to *hat e>tent the counsel can $ind his clients $ his acts and state&entsI *hat shall $e its re&uneration, *hether he *ill have a lien on his clientEs !ro!ert , etc. /t is evident, ho*ever, that as counsel is also confor& to the ethical code !rescri$ed for hi& $ la* and usage, he cannot $e a &ere agent or &outh!iece of his clients to carr out his $iddings.

A 0iduciar# relationship
@he relationshi! $et*een a la* er and a client is highl fiduciar and it is the dut of an advocate fearlessl to u!hold the interests of the client $ fair and honora$le &eans *ithout regard to an un!leasant conse9uences to hi&self or an other !erson. @herefore, he has a dut to fulfill all his o$ligations to*ards his client *ith care and act in good faith. Since the client entrusts the *hole o$ligation of handling legal !roceedings to an advocate, he has to act according to the !rinci!les of u$erri&a fides i.e. the ut&ost good faith, integrit , fairness and lo alt .11 Hustice A.+. Sen outlined the i&!ortance of the relationshi! of an advocate *ith his client in the follo*ing *ordsC KNothing should $e done $ an &e&$er of the legal fraternit *hich &ight tend to lessen in an degree the confidence of the !u$lic in the fidelit , honest and integrit of the !rofession. Lord 1rougha&, then aged eight Gsi>, said in a s!eech, in 1%6-, that the first great 9ualit of an advocate *as Lto rec'on ever thing su$ordinate to the interests of his clientE. =hat he said in 1%6a$out Lthe !ara&ountc of the client<s interestE, is e9uall true toda . @he relation $et*een a la* er and his client is highl fiduciar in its nature and of a ver delicate, e>acting, and confidential character re9uiring a high degree of fidelit and good faith. /t is !urel a !ersonal relationshi!, involving the highest !ersonal trust and confidence *hich cannot $e delegated *ithout
11 Kokkanda B. Poondacha v K.D. Ganapathi 3,)115 1, S00 6)) 31,5

"

consent. A la* er *hen entrusted *ith a $rief, is e>!ected to follo* the nor&s of !rofessional ethics and tr to !rotect the interests of his clients, in relation to *ho& he occu!ies a !osition of trust.M1,

7hat a$e #e du&es of an "d8o(a 9*a$ds h%s Cl%ent:

1. Duty to accept briefs and charge reasonable fees
An advocate is $ound to acce!t an $rief in the courts or tri$unals or $efore an other authorit in or $efore *hich he !ro!oses to !ractice.14 S!ecial circu&stances &a 2ustif his refusal to acce!t a !articular $rief. An advocate &ust charge a fee consistent *ith his standing at the $ar and the nature of the case. @he 0onstitution of /ndia &a'es !rovision for the high courts to settle the ta$le of fees !a a$le to advocates !racticing $efore the&. 1An advocate &ust not sti!ulate a fee contingent on the results of litigation, or agree to share the !roceeds of litigation.15 @his is $ecause giving the la* er an interest in the su$2ect &atter of the suit is against !rofessional ethics and violative of !u$lic !olic . /f he *ithdra*s fro& a case, the advocate &ust refund an !art of the fee that *as not earned. .o*ever, once an advocate has acce!ted a case, he &ust under no circu&stances *ithdra* fro& the sa&e *ithout sufficient cause and *ithout giving reasona$le and sufficient notice to the client.16 An advocate should not trade or agree to receive an share or interest in an actiona$le clai&. Nothing in this rule shall a!!l to stoc', shares and de$entures of govern&ent securities, or to an instru&ents, *hich are, for the ti&e $eing, $ la* or custo&, negotia$le or to an
1, 14 115 16 VC Ran adurai v D Gopa!an 31("(5 1 S00 4)% 3415 Supra " ,.6.4.,A11B 0onstitution of /ndia 1(-( a ,,"A4B Supra " ,.6.4.,A,)B Supra " ,.6.4.,A1,B

&ercantile docu&ent of title to goods. 1"

2. Duty to make full and frank disclosure

An advocate &ust, at the co&&ence&ent of his engage&ent and during its continuation, &a'e all full and fran' disclosures to his client relating to his connection *ith the !arties, and of an interest he &a have in and, or a$out the controvers , as is li'el to affect his client<s 2udg&ent in engaging hi& on continuing the engage&ent. 1%

3. Duty to ensure no conflict of interest

An advocate has a dut not to acce!t an engage&ent in a trial in *hich he &a have to give testi&on ,1( although there is no rule of evidence dis9ualif ing counsel fro& giving evidence in a suit in *hich he is engaged. An advocate is not entitled to act in a !rofessional ca!acit as *ell as a constituted attorne of a !art in the sa&e &atter or cause. /f a !erson a!!oints a fir& of la* ers as his advocates, none of the !artners of the la* ers< fir& can act as recogniJed agents in !ursuance of a !o*er of attorne concerning the sa&e cause. An advocate *ho has at an ti&e advised a !art in connection *ith the institution of a suit, a!!eal or other &atter or has dra*n !leadings or acted for a !art , &ust not act, a!!ear or !lead for the o!!osite !art after full disclosure of facts. /n case an advocate feels that there *ill $e conflict of interest in filing a case on $ehalf of his client, his dut is to advise his client to engage so&e other advocate. @he Su!re&e 0ourt in this regard o$servedC K/t is not in accordance *ith !rofessional eti9uette for an advocate *hile retained $ one !art to acce!t the $rief of the other. /t is un!rofessional to re!resent conflicting interests e>ce!t $
1" 1% 1( ,) Supra " ,.6.4.,A,1B Supra " ,.6.4.,A1-B Supra " ,.6.4.,A14B Supra " ,.6.4.,A44B
,)

, unless the e>!ress consent given of all concerned is o$tained,

e>!ress consent given $ all concerned after a full disclosure of the facts.M ,1

4. Duty of care to client

An advocate should ensure that the interests of the client are not in an &anner hurt $ his acts or o&issions. .e &ust also defend a !erson accused of a cri&e, regardless of his !ersonal o!inion as to the guilt of the accused and &ust not a$use or ta'e advantage of the confidence re!osed in hi& $ the client. ,,

@here is a dut of care that a counsel o*es to his !art *hich clearl e>tends to ensuring that the interests of his !art are not in an &anner hurt $ his doing *hat should not have $een done or o&itting to do, *hat is re9uired and necessar in the discharge of his dut as counsel.,4 1reach of such dut cannot, $ut la counsel o!en to a charge of negligence *hich is actiona$le too, as held $ the Su!re&e 0ourt in ". V##rappa v. $v#!yn S#%u#ira,=hen counsel does not infor& the client of the su$se9uent !roceeding of the case, he co&&its a $reach of this dut and is therefore lia$le for !rofessional negligence.

5. Duty to maintain confidentiality

@he relation $et*een a la* er and a client involves the highest degree of !ersonal trust and confidence. @he /ndian Evidence Act s!ecificall !rovides that no la* er is an ti&e !er&itted, to disclose an co&&unication &ade $et*een his client and hi&self during the course of the engage&ent unless it is *ith his client<s e>!ress !er&ission. ,5

6. Duty to act only on clients instructions

An advocate should not act on the instructions of an !erson other than his client or
,1 ,, ,4 ,,5 Chandra Sh#khar Soni v Bar Counci! o& Ra'asthan 31(%45 - S00 ,55 3,5I Supra 1, 34)5 Supra " ,.6.4.,A15B "an'it Kaur v D#o! Bus S#rvic# (td A/R 1(%( +&. 1%4 3(5 31(%%5 1 S00 556I A/R 31(%%5 S0 5)6 /ndian Evidence Act 1%", s 1,6I Supra " ,.6.4.,A1"B

1)

the clientEs authoriJed agent. ,6 @he engage&ent of a la* er co&es to an end *hen the client $eco&es una$le to give instructions $ecause of his &ental illness or other reasons.An advocate acting on the instructions of an agent and not the instructions of the client, co&&its !rofessional &isconduct.

. Duty to the la!

@hough a la* er has the dut to re!resent his client to the $est of his a$ilit , he should not neglect the fact that his lo alt is to the la*. An advocate &ust also not $e a !art to fo&enting of litigation.," .e should not su!!ress facts or conduct the !rosecution that leads to conviction of the innocent. ,%

". Duty relating to #roperty in dispute

An advocate should not $ an &eans $id for, or !urchase, either in his o*n na&e or in an other na&e, for his o*n $enefit or for the $enefit of an other !erson, an !ro!ert sold in an legal !roceeding in *hich he *as in an *a !rofessionall engaged. .o*ever, it does not !revent an advocate fro& $idding for or !urchasing for his client an !ro!ert on $ehalf of the client !rovided the Advocate is e>!ressl authoriJed in *riting in this $ehalf. ,( An advocate should not $ an &eans $id in court auction or ac9uire $ *a of sale, gift, e>change or an other &ode of transfer Aeither in his o*n na&e or in an other na&e for his o*n $enefit or for the $enefit of an other !ersonB, an !ro!ert *hich is the su$2ect &atter of an suit, a!!eal or other !roceedings in *hich he is in an *a !rofessionall engaged. 4) Su!re&e court e>a&ined the conduct of advocate +.#. 7u!ta in $u ing the !ro!ert , the su$2ectG&atter of litigation $et*een the !arties, fro& his client. .e sold the !ro!ert to a third !erson, &ade !rofit and created &ore co&!lications in the !ending suit. +.#. 7u!ta !urchased
,6 ," ,% ,( 4) Supra " ,.6.4.,A1(B Supra " ,.6.4.,A1%B Supra " ,.6.4.,A16B Supra " ,.6.4.,A,,B Supra " ,.6.4.,A,,AB

11

the !ro!erties *hich *ere the su$2ectG&atter of the dis!ute for hi&self and also for his sonGinG la* at al&ost thro*Ga*a !rices and thus he hi&self $eca&e a !art to the litigation. @he Su!re&e 0ourt o$servedC K=e are concerned *ith the !rofessional conduct of +.#. 7u!ta as a la* er conducting the case for his client. A la* er o*es a dut to $e fair not onl to his client $ut also to the court as *ell as to the o!!osite !art in the conduct of the case. .ere, +.#. 7u!ta in $u ing the !ro!ert has in effect su$verted the !rocess of 2ustice. .is action has raised serious 9uestions a$out his fairness in the conduct of the trial touching his !rofessional conduct as an advocate. 1 his action he has $rought the !rocess of ad&inistration of 2ustice into disre!ute.M 41 @he Su!re&e 0ourt concluded and held +.#. 7u!ta guilt of &isconduct

,. 6ut# relating to 0ees and amounts

a7 An advocate should not ad2ust fee !a a$le to hi& $ his client against his o*n !ersonal lia$ilit to the client, *hich does not arise in the course of his e&!lo &ent as an advocate. 4, b7 +ro!er accounts of the clientsE &one entrusted to hi& should $e &aintained . @he accounts should sho* the a&ounts received fro& the client or on his $ehalf. @he account should sho* along *ith the e>!enses incurred for hi& and the deductions &ade on account of fees *ith res!ective dates and all other necessar !articulars. 44 c7 /t is his dut to &ention in his accounts *hether an &one received $ hi& fro& the client are on account of fees or e>!enses during the course of an !roceeding or o!inion. .e shall not divert an !art of the a&ounts received for e>!enses as fees *ithout *ritten instruction fro& the client. 4d7 0lient should $e inti&ated as and *hen a&ount is received or given to advocate on $ehalf of his client.45 e7 An advocate shall after the ter&ination of !roceedings, $e at li$ert to ad2ust the fees due to hi& fro& the account of the client. @he $alance in the account can $e the a&ount !aid $ the client or an a&ount that has co&e in that !roceeding. An
41 4, 44 445 P.D. Gupta v Ram "urti 31(("5 " S00 1-" !15Supra " ,.6.4.,A,4B Supra " ,.6.4.,A,5B Supra " ,.6.4.,A,6B Supra " ,.6.4.,A,"B

1,

a&ount left after the deduction of the fees and e>!enses fro& the account &ust $e returned to the client. 46 f7 An advocate &ust !rovide the client *ith the co! !aid.4" g7 An advocate shall not enter into arrange&ents *here$ funds in his hands are converted into loans.4% h7 An advocate shall not lend &one to his client for the !ur!ose of an action or legal !roceedings in *hich he is engaged $ such client. An advocate cannot $e held guilt for a $reach of this rule, if in the course of a !ending suit or !roceeding, and *ithout an arrange&ent *ith the client in res!ect of the sa&e, the advocate feels co&!elled $ reason of the rule of the 0ourt to &a'e a !a &ent to the 0ourt on account of the client for the !rogress of the suit or !roceeding. 4( of the clientEs account &aintained $ hi& on de&and, !rovided that the necessar co! ing charge is

46 4" 4% 4(

Supra " ,.6.4.,A,1B,A,%B Supra " ,.6.4.,A4)B Supra " ,.6.4.,A41B Supra " ,.6.4.,A4,B

14

Shambhu Ram Yada8 8. ;anuman Das Khatry<=

@his case is a classic e>a&!le *here a la* er suggesting his client to $ri$e the 2udge to receive favora$le order *as sus!ended !er&anentl fro& legal !rofession $ the 1ar 0ouncil of /ndia. .is defense that such 2udge indeed received $ri$e and that he *as &erel re!l ing to the 9ueries of his client *ho sought infor&ation, did not *or' in his favor Also, the defense that he has a clean record as a legal !ractitioner for !ast fift ears and this *as his first ti&e, did not soften the 0ourt. ;n the contrar , the court sus!ended the accused la* er for tainting the legal !rofession in s!ite of the *isdo& and e>!eriences gained over the ears. #ecided on Hul ,6,,))1 1efore Mr. Hustice 6.@. @ho&as & Mr. Hustice :.6. Sa$har*al Hudg&ent delivered $ .onora$le Mr. Hustice :.6. Sa$har*al Re!ortedC A,))1B 6 S00 1I A/R ,))1 S0 ,5)(

0acts8
@he res!ondent *hile a!!earing as a counsel in a suit !ending in a civil court *rote a letter to Mahant Ra2giri, his client inter alia stating that another client of his has told hi& that the Hudge concerned acce!ts $ri$e and he has o$tained several favora$le orders fro& hi& in his favorI if he can influence the Hudge through so&e other gentle&an, then it is a different thing, other*ise he should send to hi& a su& of Rs 1),))) so that through the said client the suit is got decided in his AMahant Ra2giri<sB favor. @he letter further stated that if Mahant can !ersonall *in over the Hudge on his side then there is no need to s!end &one .

Procedural 9istor#8
1. A co&!laint filed $ the a!!ellant against the res!ondent Advocate $efore the 1ar 0ouncil of Ra2asthan *as referred to the #isci!linar 0o&&ittee constituted $ the
-) A/R 3,))15 S0 ,5)(I 3,))15 6 S00 1

1-

State 1ar 0ouncil. -. /n re!l to the co&!laint, the res!ondent !leaded that the services of the +residing Hudge *ere ter&inated on account of illegal gratification and he had follo*ed the nor&s of !rofessional ethics and $rought these facts to the 'no*ledge of his client to !rotect his interest and the &one *as not sent $ his client to hi&. ?nder these circu&stances it *as urged that the res!ondent had not co&&itted an !rofessional &isconduct. 3. @he State 1ar 0ouncil noticing that the res!ondent had ad&itted the contents of the letter ca&e to the conclusion that it constitutes &isconduct. /n the order the State 1ar 0ouncil stated that 'ee!ing in vie* the interest of the litigating !u$lic and the legal !rofession such a !ractice *henever found has to $e dealt *ith in an a!!ro!riate &anner. .olding the res!ondent guilt ears *ith effect fro& 15G6G1((". *. @he res!ondent challenged the aforesaid order $efore the #isci!linar 0o&&ittee of the 1ar 0ouncil of /ndia. 1 order dated 41G"G1((( the #isci!linar 0o&&ittee of the 1ar 0ouncil of /ndia co&!rising of three &e&$ers enhanced the !unish&ent and directed that the na&e of the res!ondent $e struc' off fro& the roll of advocates, thus de$arring hi& !er&anentl fro& the !ractice. . @he res!ondent filed a revie* !etition under Section -- of the Advocates Act against the order dated 41G"G1(((. @he revie* !etition *as allo*ed and the earlier order &odified $ su$stituting the !unish&ent alread a*arded !er&anentl de$arring hi& *ith one of re!ri&anding hi&. @he i&!ugned order *as !assed $ the #isci!linar 0o&&ittee co&!rising of three &e&$ers of *hich t*o *ere not &e&$ers of the earlier 0o&&ittee *hich had !assed the order dated 41G"G1(((. !. @he revie* !etition *as allo*ed and acce!ted $ the #isci!linar 0o&&ittee and the earlier 2udg&ent of the 0o&&ittee dated 41G"G1((( *as &odified and his sus!ension of &isconduct under Section 45 of the Advocates Act, the State 1ar 0ouncil sus!ended hi& fro& !ractice for a !eriod of t*o

15

for life *as revo'ed and he *as onl re!ri&anded on -G6G,)))

Issues
AB 0an #isci!linar 0o&&ittee of 1ar 0ouncil of /ndia revie* the !unish&ent

a*ardedN-1 0an it deliver different vie* on the sa&e set of factsN 1B =hether the co&&unication to a client that a !articular Hudge is o!en to $ri$er and suggest that the client should !art *ith &one ARs 1),))) in this caseB to $e !assed on to the Hudge, is a serious &isconductN-, .o* and *hat !unish&ent should $e a*arded for &isconductN-4 0B =hat is the dut of 1ar 0ouncil as #isci!linar 1od N --

9oldings
1. Section -- of the advocate<s act e&!o*ers the #isci!linar 0o&&ittee to revie* its order ho*ever the court said that the there is a li&it to this !rovision an too' the vie* that a different decision $ the #isci!linar 0o&&ittee on the sa&e set of facts is not !er&itted. @he court o$served that the original order has $een revie*ed on nonGe>istent grounds. All the factors ta'en into consideration in the i&!ugned order *ere alread on record and *ere considered $ the 0o&&ittee *hen it !assed the order dated 41G"G1(((. @he court said that the !o*er of revie* has not $een e>ercised $ a!!l ing *ellG settled !rinci!les governing the e>ercise of such !o*er, /t too' the vie* that all the reasons and facts *ere ta'en into consideration $ the earlier 0o&&itteeI the relevant !ortion of the letter *ritten $ the advocate had $e !roduced and that the res!ondent has ad&itted that the letter *as sent re9uiring his client to send Rs 1),))) for the !a &ent as $ri$e to the Hudge concerned.
-1 -, -4 -Supra ) s --, 4", 45 Supra ) s 45 Ibid Supra , s 46

16

@he 0ourt finall o$served that the e>ercise of !o*er of revie* does not e&!o*er a #isci!linar 0o&&ittee to &odif the earlier order !assed $ another #isci!linar 0o&&ittee ta'ing a different vie* of the sa&e set of facts.M -5 -. @he 0ourt too' serious note of the &isconduct $ the advocateC @he 0ourt 9uestioned that ho* the 0o&&ittee had co&e to the conclusion that the res!ondent Khad no intention to $ri$e the HudgeM as there *as nothing on the record to suggest it. @he earlier order had ta'en into consideration all relevant factors for co&ing to the conclusion that the advocate *as totall unfit to $e a la* er having *ritten such a letter and !unish&ent lesser than de$arring hi& !er&anentl cannot $e i&!osed. @he res!ondent *as indeed guilt of a serious &isconduct $ *riting to his client the letter as aforesaid. @he court in this regard said that &e&$ers of the legal !rofession are officers of the court and the also o*e a dut to the societ *hich has a vital !u$lic interest in the due ad&inistration of 2ustice. ?!holding the order dated 41G"G 1((( *hich in consideration of the &isconduct i&!osed the !enalt of !er&anent de$ar&ent the 0ourt said that the !unish&ent has to co&&ensurate *ith the gravit of the &isconduct.-6 3. =ith regard to the dut of the #isci!linar 0o&&ittee the court said that K@he disci!linar $odies are guardians of the due ad&inistration of 2ustice. @he have re9uisite !o*er and rather a dut *hile su!ervising the conduct of the &e&$ers of the legal !rofession, to inflict a!!ro!riate !enalt *hen &e&$ers are found to $e guilt of &isconduct. /t is the dut of the 1ar 0ouncils to ensure that la* ers adhere to the re9uired standards and on failure, to ta'e a!!ro!riate action against the&. @he credi$ilit of a 0ouncil including its disci!linar $od in res!ect of an !rofession *hether it is la*, &edicine, accountanc or an other vocation de!ends u!on ho* the deal *ith cases of delin9uenc involving serious &isconduct *hich has a tendenc to erode the credi$ilit and re!utation of the said !rofession.M -" KSince the 1ar 0ouncils under the Advocates Act have $een entrusted *ith the dut of
-5 Supra -) 3"5 -6 Ibid -" Supra -) 3%5

1"

guarding the !rofessional ethics, the

have to $e &ore sensitive to the !otential

disre!ute on account of action of a fe* $lac' shee! *hich &a sha'e the credi$ilit of the !rofession and there$ !ut at sta'e other &e&$ers of the 1ar. 0onsidering these factors, the 1ar 0ouncil had inflicted in its earlier order the condign !enalt .M -% *. @he 0ourt set aside the i&!ugned order dated -G6G,))) and restoring the original order of the 1ar 0ouncil of /ndia dated 41G"G1((( !er&anentl advocate fro& !racticing sus!ending the

-% Ibid 3(5

1%

>%bl%o+$a/hy

1. Ra2u Ra&achandran Pro&#ssiona! $thics* Chan in Pro&#ssion and Chan in $thics ALe>isNe>is 1utter*orths ,))-B. -. +. Ra&anatha Ai er (# a! + Pro&#ssiona! $thics , (# a! $thics- Duti#s + Privi!# #s o& a (a.y#r A=adh*a +u$lications, Nag!urB. 3. Hustice 8. R. 6rishna / er (a.- (a.y#rs and /ustic# A1. R. +u$lishing 0or!n, #elhiB. *. 6ailash Rai, 0ccountabi!ity &or (a.y#r + B#nch A(th edn. 0entral La* +u$lication ,))%B . Su$ra&an a& 0dvocat#s 0ct- Comm#ntari#s on 0dvocat#s 0ct .ith Bar Counci! Ru!#s 1C#ntra! + Stat#s2 .ith Pro&#ssiona! $thics + 0!!i#d (a.s A4rd edn 6u&ar La* +u$lication Li&ited #elhi ,)1)B

1(