Breach of Profrssional Ethics by Lawyers

Submitted to:
Mr. Arvindh Nath Tripathi
Faculty of Law

Submitted by:
Permanika Chuckal
IXth Semester
201275

Damodaram Sanjivayya National Law University

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ACKNOWLEDGMENT

I would like to express my special appreciation and thanks to my advisor

Mr, Arvind Tripathi who have been a tremendous mentor for me. I would like to thank

you for encouraging my research, advice for the research has been priceless.

I would extend my thanks to the University Authorities, for providing me with is

opportunity to submit my project. I am indebted to all those who have helped me in

developing this project for their suggestion and guidance.

Permanika Chuckal
201275

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Table of Contents
Serial Topic Page No.
No.
1. Introduction 4
2. Lawyers Professional Ethics to Public and State 6
3. Lawyers and Ethics 7
4 Breach of Ethics by Lawyers 11
5 Conclusion 23

6 Bibliography 24

CHAPTER 1

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INTRODUCTION
The Legal Profession in India
India has the worlds second largest legal profession with more than 600,000 lawyers.
The predominant service providers are individual lawyers, small or family based
firms. Most of the firms are involved in the issues of domestic law and majority work
under countrys adversarial litigation system. The conception of legal services as a
noble profession rather than services resulted in formulation of stringent and
restrictive regulatory machinery. These regulations have been justified on the grounds
of public policy and dignity of profession. The judiciary has reinforced these
principles, which can be reflected in words of Justice Krishna Iyer, when he noted,
Law is not a trade, not briefs, not merchandise, and so the heaven of commercial
competition should not vulgarize the legal profession. However over the years courts
have recognized Legal Service as a service rendered to the consumers and have
held that lawyers are accountable to the clients in the cases of deficiency of services.
In the case of Srinath V. Union of India(AIR 1996 Mad 427) Madras High Court held
that, in view of Sec. 3 of Consumer Protection Act, 1986. Consumer redressal forums
have jurisdiction to deal with claims against advocates. Sec. 2 (U) of competition Act,
2002 defines the term Service along the lines of consumer protection Act, 1986.
Thus it may be concluded that legal services are becoming subject of trade related
laws where consumerism and market forces should be given adequate space .1

Changing Face of Legal Profession

Globalization brought about a revolution in international trade with increasing
participation and involvement of countries & greater access to domestic economies.
The implication of the same on the legal service sector has been both quantitative and
qualitative. The past decade has been mini-revolution in legal service sector with the
greatest legal impact on corporate legal arena Activities in project financing,
intellectual property protection, environmental protection, competition law, corporate
taxation, infrastructure contract, corporate governance and investment law were
almost unknown before 90s. Number of Law firms capable of dealing such work was
very few . It is evident that need of professional service has been tremendous in the
1 C. Rama Rao, Y. Vijayalakshmi Tayaru, Y. Nageswara Rao, Professional Ethics &
Advocacy,Visakhapatnam : Gayatri Books, 1987.

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legal service sector. In last few years Law Firms, in house firms and individual
lawyers expertise in providing legal services in corporate sector has increased by
several times. These new Law Firms primarily engage and loan instrument, writing
infrastructural contracts, power contract, drafting of project finance, contracts,
finalizing transnational investment, joint venture and technology transfer contracts.
This is discerning shift in the disposition of emerging legal sectors towards settling
disputes through ADRS rather adversarial litigation mode of dispute resolution
Globalization has thus expanded the internal and external demand for legal services .
Today in legal services is on inevitable fact. At the same time significant for
progressive development of legal profession in India in this era of Globalization.2

Legal Service Sector

The term legal services sector is completely, different type of services as compared to
software programming, medical practice or other professional services. Though it is
more or less protected from intrusion due to the fact that its traditional base is derived
not only from statutes and the existence of statutory bodies but also from conservative
and traditional mindset that inhibit development of cross border services supply. Even
globally the legal services sector is necessarily shackled by jurisdictional constraints
such of the requirement for a degree from the country where the service is to be
imparted. Some local considerations apply only to certain aspects of legal services
and not to others. Where the local considerations are important they must be
preserved and exceptions made, must only for global market access. Thus on the one
hand there is the need to be part of a global fraternity and to make beneficial
commitments that promote trade in services and on the other hand there is need to
preserve national interest.

CHAPTER 2

LAWYERS PROFESSIONAL ETHICS TO STATE AND PUBLIC

2 Krishnamurthy C, Legal Education and Legal Profession In India, International Journal of Legal Information,36, no. 2,
(2008): 245-26

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Professional ethics are a set of norms or codes of conduct, set by people in a specific
profession. A code of ethics is developed for each profession. Suppose you write
articles in a newspaper. Professional ethics require that you verify facts before you
write that article, isnt it? Simply put, professional ethics for lawyers in India lay
down a set of guidelines, which defines their conduct in the profession that is highly
competitive and dynamic. Indian law requires lawyers to observe professional ethics
to uphold the dignity of the profession.3

People are surprised when they hear that lawyers are expected to follow professional
ethics and that they are accountable for dishonest, irresponsible and unprofessional
behavior. Further, most people do not know that lawyers in India can lose the license
to practice if they are found guilty of unethical practices that tarnish the dignity of
their profession. A lawyer must adhere to the professional norms, for fair dealing with
his client and to maintain the dignity of the profession.

3 Prassad Anirudh, Principles of the ethics of legal profession in India : accountancy

for lawyers and bench-bar relations including contempt of court, Jaipur University
Book House, 2004.

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CHAPTER 3

LAWYERS AND ETHICS 4

1. Law touches every aspect of life more so in commercialized urban cities for
example the developing branches in matrimonial, consumer, pollution,
intellectual property, health, education, constitutional rights, human rights,
taxes fees, revenues, foreign trade, company laws, telecom laws so on and so
forth.

2. Justice is great interest of man of earth. Justice is a supreme virtue. It is in this

context a lawyer come into being. The dictionary meaning of lawyer means
the member of legal fraternity. We find the reference of the role of lawyer in
ancient texts. The word Vakil is Indian nomenclature, which means an agent.

3. The legal profession existed in Hindu and Buddhistic times and during the
Mogul Period. The U.S.A. was the first civilized country to formulate the
code of ethics for legal profession. Gradually the Code of Conduct was also
evolved from time to time for the members of legal profession. And now
Advocates Act 1961 is enacted by Government of India. The Bar Association
of India announced on 15.1.1962 code of ethics for the legal profession.
Under the Advocates' Act an Advocate means an Advocate enrolled under the
Act.

4. Law streams from Soul of people, like national poetry. It is as holy as national
religion. It grows and spreads like language. The religions ethics and
political elements of contribute to its vital force. It is distilled essence of
civilization of people. It reflects the People's soul more clearly than
organism. It is said that the civilization of any country is tested by the fact as
to how the administration of justice for criminals is administered.

5. He who practices law is not merely a lawyer but acts as moral agent and that
character he cannot shake off by any other character on any professional

4http://lite.epaper.timesofindia.com/getpage.aspx?
articles=yes&pageid=9&max=true&articleid=Ar00900&sectid=4edid=&edlabel=TOI
CH&mydateHid=10-05-2011&pubname=Times+of+India accessed on 20th October
2016.
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 character. He derives from the belief that he shares sentiment of all mankind.
This influence of his morality is one of his possession, which like all his
possessions he is bound to use for moral ends. He makes it the supreme
object of his life. To cultivate his moral being is his higher aim. Members of
the Bar like Judges are the officers of the Court and like Judges, he should be
of good behaviour. Nothing, which is morally wrong, can be professionally
right.

6. A lawyer shall not act contrary to basic principles of morality and at all times
shall act honestly. He should not render any service or give advice involving
breach of law or implying disrespect to the established judiciary. He should
conduct himself with due dignity and self-respect and shall assist in the
enforcement of law and administration of justice. He is the backbone of the
society. Advocacy is the respectable noble profession on the principles.
Firstly, the Advocate is not expressing his own opinion. Secondly, Advocate
performs on behalf of his client. Thirdly, his primary function is to assist to
Court to determine his clients' rights. In fact, Supreme Court in case of the
Bar Council of Maharashtra and Goa has observed "Legal Profession is a
partner with judiciary in the administration of the justice".

7. The Advocate owes duty to the client, court, to the society and to the
profession.

8. The Advocate owes a very substantial duty to the person who puts his life,
liberty, finances, reputation, or general happiness into his hands. The client
'must rely on him at times for fortune and character and life'. His obligation
is to represent his client, any client, no matter how unmeritorious the case,
'no matter how great a ill-reputed the man may be, no matter how
undeserving or unpopular his cause'.

9. When counselling the client, a lawyer can and should express his opinions
fully and frankly about all aspects of the case, legal and ethical. The client
can insist on having clear and definite advice as to what is going to happen in
court and, in many cases, what is going to be reported in the newspapers.

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 10. In giving the advice, he should act honestly and in good faith and shall not
take advantages of ignorance of the client. He shall devote to the client's
cause is executed and skill to the utmost of his ability. An Advocate shall not
disclose any matter communicated to him in his professional capacity nor
use any knowledge obtained in any other proceedings except with the
consent of his client. An Advocate is bound to accept any proof unless there
are special circumstances justifying his refusal. An Advocate shall decline to
accept a brief, in a case where he believes or likely to be called as a witness.

11. An Advocate shall not deal with the client's property so as to acquire any
interest for personal benefit or gain by taking advantage of confidence,
repose in him by his client. He should not lend any money, to the client for
any action or legal prosecution. He should not acquire in any manner
whatsoever any interest in the subject matter of the litigation. He should not
stand surety for his client.

12. An Advocate shall conduct himself with due dignity and self-respect. He
should show due respect to the Judiciary Office and shall not act so as to
undermine confidence in Judiciary. He is not supposed to excert any personal
influence on the Court nor gives any impression that he possesses personal
influence with the Court of Judge.

13. He shall not render any services or give advice to imply disrespect to the
establishment of judiciary. He shall assist in the administration of justice. He
should be respectful to the judicial officers and shall not act in any manner to
undermine confidence in Judiciary. He should be frank and fair with the
Court. He should not make a deliberate wrong statement or deliberately
misquote the contents of the document, testimony of the witness, the opinion
or argument of opposing Counsel, any of decision or a context in the book, to
cite authority and decision, or that has been overruled or statute that has been
repealed or amended. 5

5 Prassad Anirudh, Principles of the ethics of legal profession in India : accountancy

for lawyers and bench-bar relations including contempt of court, Jaipur University
Book House, 2004.

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 14. The duty of an Advocate towards the profession is that he shall not speak ill
of the profession but shall conduct himself in a such a way as to enhance
regard, respect sympathy and strive to maintain the honour and dignity of the
profession. An Advocate shall not discuss case or appeal, should not divert or
solicit work by advertisement. An Advocate shall not engage intermediaries
for procuring work. An Advocate shall not engage himself in any other
business or he should not be a full time salaried employee of any firm,
corporation, concern. An Advocate may act as an arbitration or umpire. An
Advocate is not supposed to wear his uniform, robes or a gown in public or
when appearing as witness. He should be fair to his opponents. He should
not adopt sharp practices. He should be polite to be opponents.

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 CHAPTER 4

BREACH OF PROFESSIONAL ETHICS BY LAWYERS

An advocate is the most accountable, privileged and erudite person of the society and
his act are role model for the society, which are necessary to be
regulated. Professional misconduct is the behaviour outside the bounds of what is
considered acceptable or worthy of its membership by the governing body of a
profession.6 Professional misconduct refers to disgraceful or dishonourable conduct
not befitting an advocate.7 Chapter V of the Advocate Act, 1961, deals with the
conduct of Advocates. It describes provisions relating to punishment for professional
and other misconducts. Section 35(1) of the Advocate Act, 1961, proviso says, is
relevant in this context. This proviso say, where on receipt of a complain otherwise a
State Bar Council has reason to believe that any advocate on its roll has been guilty of
professional or other misconduct, it shall refer the case for disposal to it disciplinary
committee. In depth the provisions are discussed in the later part. Generally legal
profession is not a trade or business, its a gracious, the noble, and decontaminated
profession of the society. Members belonging to this profession have not to encourage
deceitfulness and corruption, but they have to strive to secure justice to their clients.
The credibility and reputation of the profession depends upon the manner in which the
members of the profession conduct themselves. Its a symbol of healthy relationship
between Bar and Bench. There is heavy responsibility on those on whom duties are
vested by the virtue of being a part of my most credible as plausible profession of the
society.
The Advocates Act, 1961 as well Indian Bar Council are silent in providing exact
definition for profession misconduct because of its scope, though under Advocate Act,
1961 to take disciplinary action punishment are prescribed when the credibility and
reputation on the profession comes under a clout on account of acts of omission and
commission any member of the profession.

What Is The Code Of Conduct Prescribed For An Advocate?

6 www.businessdictionary.com/professional-misconduct.html accessed on 12th October 2016.
7 Vincent Vs. UOI, AIR 1987 SC 990
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The Bar Council Rules prescribe a strict code of conduct for advocates, it has to
follow:8
No advertising or soliciting work, it is against an advocates code of ethics to solicit
or advertise work and amounts to a misconduct on the part of the advocate. Both
direct and indirect advertising is prohibited. An advocate may not advertise his
services through circulars, advertisements, touts, personal communication or
interviews not warranted by personal relations. Similarly, the following forms of
indirect advertising are prohibited: (i) by issuing circulars or election manifestos by a
lawyer with his name, profession and address printed on the manifestos, thereby
appealing to the members of the profession practising in the lower courts who are in a
position to recommend clients to counsel practising in the HC. (ii) canvassing for
votes by touring in the province or sending out his clerk or agents to the various
districts, which must necessarily mean directly approaching advocates practising in
subordinate courts. Further, the signboard or nameplate displayed by an advocate
should be of reasonable size. It should not refer to details of an affiliated by the
advocate i.e. that he is or has been president or member of a bar council or of any
association, or he has been a Judge or an Advocate-General, or that he specialises in a
particular kind of work, or that he is or was associated with any person or organisation
or with any particular cause or matter.
Not demand fees for training; An advocate is restrained from demanding any fees
for imparting training to enable any person to qualify for enrolment.
Not use name/services for unauthorised practice; An advocate may not allow his
professional services or his name to be associated with, or be used for any
unauthorised practice of law by any lay agency.
Not enter appearance without consent of the advocate already engaged: an
advocate is prohibited from entering appearance in a case where there is already
another advocate engaged for a party except with the consent of such advocate.
However if such consent is not produced, the advocate must state the reasons for not
producing it, and may appear subsequently, only with the permission of the court.
Duty to opposite party:- While conducting a case, a lawyer has a duty to be fair not
only to his client but also to the court, and to the opposite party. An advocate for a
party must communicate or negotiate with the other parties regarding the subject
matter of controversy, only through the opposite partys advocate. If an advocate has
8 http://www.indlaw.com/display.aspx last accessed on 19th October 2016.
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made any legitimate promises to the opposite party, he should fulfil the same, even if
the promise was not reduced to writing or enforceable under the rules of the court.
Duties of an advocate towards his client: The relationship between a lawyer and a
client is highly fiduciary and it is the duty of an advocate fearlessly to uphold the
interests of the client by fair and honourable means without regard to any unpleasant
consequences to himself or any other person.
Procedure Followed On The Notice Of Professional Misconduct
The following is the procedure followed:
(1) In exercise of powers under Section 35 contained in Chapter V entitled conduct
of advocates, on receipt of a complaint against an advocate (or suo motu) if the State
Bar Council has reason to believe that any advocate on its roll has been guilty of
professional or other misconduct, disciplinary proceeding may be initiated against
him.
(2) Neither Section 35 nor any other provision of the Act defines the expression legal
misconduct or the expression misconduct.
(3) The Disciplinary Committee of the State Bar Council is authorised to inflict
punishment, including removal of his name from the rolls of the Bar Council and
suspending him from practice for a period deemed fit by it, after giving the advocate
concerned and the Advocate General of the State an opportunity of hearing.
(4) While under Section 42(1) of the Act the Disciplinary Committee has been
conferred powers vested in a civil court in respect of certain matters including
summoning and enforcing attendance of any person and examining him on oath, the
Act which enjoins the Disciplinary Committee to afford an opportunity of hearing
(vide Section 35) to the advocate does not prescribe the procedure to be followed at
the hearing.
(5) The procedure to be followed in an enquiry under Section 35 is outlined in Part
VII of the Bar Council of India Rules2 made under the authority of Section 60 of the
Act.
(6) Rule 8(1) of the said Rules enjoins the Disciplinary Committee to hear the
concerned parties that is to say the complainant and the concerned advocate as also
the Attorney General or the Solicitor General or the Advocate General. It also enjoins
that if it is considered appropriate to take oral evidence the procedure of the trial of
civil suits shall as far as possible be followed.

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Contempt Of Court As Misconduct
In the recent case of B. M. Verma v. Uttrakhand Regulatory Commission9 court noted
that, it was given the wide powers available with a Court exercising contempt
jurisdiction, court quoted several he Delhi HC, in the case of Court of Its Own Motion
v. State 10, dealing with the contempt proceedings involving two senior advocates,
observed that given the wide powers available with a Court exercising contempt
jurisdiction, it cannot afford to be hypersensitive and therefore, a trivial misdemeanor
would not warrant contempt action. Circumspection is all the more necessary because
as observed by the SC in SC Bar Association v. Union of India11 the Court is in effect
the jury, the judge and the hangman; while in M.R. Parashar H. L. Sehgal it was
observed that the Court is also a prosecutor. Anil Kumar Sarkar v.Hirak
Ghosh12, reiterates this.
In the most controversial and leading case of R.K. Ananad vs. Registrar of Delhi
HC13
Facts :On 30th May, 2007 a TV news channel NDTV carried a report relating to a
sting operation. The report concerned itself with the role of a defence lawyer and the
Special Public Prosecutor in an ongoing Sessions trial in what is commonly called the
BMW case. On 31st May, 2007 a Division Bench of this Court, on its own motion,
registered a writ Petition and issued a direction to the Registrar General to collect all
materials that may be available in respect of the telecast and also directed NDTV to
preserve the original material including the CD/video pertaining to the sting
operation.
Issue :The question for our consideration is whether Mr. R.K. Anand and Mr. I.U.
Khan, Senior Advocates and Mr. Sri Bhagwan Sharma, Advocate have committed
criminal contempt of Court or not. It was observed that prima facie their acts and
conduct were intended to subvert the administration of justice in the pending BMW
case and in particular influence the outcome of the pending judicial
proceedings. Accordingly, in exercise of powers conferred by Article 215 of the
Constitution proceedings for contempt of Court (as defined in Section 2(c) of the
Contempt of Courts Act, 1972) were initiated against Mr. Anand, Mr. Khan and Mr.

9 Appeal No. 156 of 2007

10 151 (2008) DLT 695 (Del., DB)
11 (1998) 4 SCC 409
12 (2002) 4 SCC 21
13 (2009) 8 SCC 106
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Sri Bhagwan Sharma and they were asked to show cause why they should not be
punished accordingly.
Held : Court said that Courts of law are structured in such a design as to evoke
respect and reverence for the majesty of law and justice. The machinery for
dispensation of justice according to law is operated by the court. Proceedings inside
the courts are always expected to be held in a dignified and orderly manner. The very
sight of an advocate, who was found guilty of contempt of court on the previous hour,
standing in the court and arguing a case or cross-examining a witness on the same
day, unaffected by the contemptuous behaviour he hurled at the court, would erode the
dignity of the court and even corrode the majesty of it besides impairing the
confidence of the public in the efficacy of the institution of the courts. This
necessitates vesting of power with the HC to formulate rules for regulating the
proceedings inside the court including the conduct of advocates during such
proceedings. That power should not be confused with the right to practise law. Thus
court held that there may be ways in which conduct and actions of a malefactor who is
an advocate may pose a real and imminent threat to the purity of court proceedings
cardinal to any courts functioning, apart from constituting a substantive offence and
contempt of court and professional misconduct. In such a situation the court does not
only have the right but also the obligation to protect itself. Hence, to that end it can
bar the malefactor from appearing before the courts for an appropriate period of time.
In the present case since the contents of the sting recordings were admitted in the
present case, there was no need for the proof of integrity and correctness of the
electronic materials. Finally the SC upheld HCs verdict making Anand guilty on the
same count. On the other hand, the SC let off I U Khan, who was found guilty by the
HC.

Attempt Of Murder:
In the case of Hikmat Ali khan v. Ishwar prasad arya and ors14, FACTSIshwar
Prasad Arya, respondent No. 1, was registered as an advocate with the Bar Council of
Uttar Pradesh and was practising at Badaun. An incident took place on May 18, 1971
during lunch interval at about 1.55 p.m., in which respondent No. 1 assaulted his
opponent Radhey Shyam in the Court room of Munsif/Magistrate, Bisauli at Badaun
with a knife. A pistol shot is also said to have been fired by him at the time of
14 [1997] RD-SC 87
15 | P a g e
incident. After investigation he was prosecuted for offences under Section 307 of the
Indian Penal Code and Section 25 of the Arms Act. The 1st Temporary Civil and
Sessions Judge, by his judgment dated July 3, 1972, convicted him of the said offence
and sentenced him to undergo rigorous imprisonment for three years for the offence
under Section 307, I.P.C. and for a period of nine months for offence under Section 25
of the Arms Act.
On the basis of the said complaint disciplinary proceedings were initiated against
respondent No. 1 by the Bar Council of U.P. he was found guilty of gross professional
mis-conduct by taking the benefit himself of a forged and fabricated document which
had been prepared at his behest. The Disciplinary Committee of the Bar Council of
U.P. directed that respondent No. 1 be debarred from practising as an advocate for a
period of two years from the date of the service of the order. Respondent No. 1 filed
an appeal, the said appeal was allowed by the Disciplinary Committee of the Bar
Council of India by order dated June 8, 1984 and the order of the Disciplinary
Committee of the Bar Council of U.P. dated January 30, 1982 was set aside on the
view that there was no material on the basis of which it could reasonably be held that
respondent No. 1 had prepared the document which was subsequently found
forged.Further the submission of Shri Markendaya is that having regard to the gravity
of the misconduct of respondent No. 1 in assaulting his opponent in the Court room
with a knife and his having been committed the offence under Section 307, I.P.C. and
his being sentenced to undergo rigorous imprisonment for three years in connection
with the said incident, the punishment of removal of the name of respondent No. 1
from the roll of advocates should have been imposed on him and that the Disciplinary
Committee of the Bar Council of U. P. was in error in imposing the light punishment
of debarring respondent No. 1 from practising as an advocate for a period of three
years only and that this was a fit case in which the appeal filed by the appellant should
have been allowed by the Disciplinary Committee of the Bar Council of India.

Held: The acts of mis-conduct found established are serious in nature. Under Sub-
section (3) of Section 35 of the Act the Disciplinary Committee of the State Bar]
Council is empowered to pass an order imposing punishment on an advocate found
guilty of professional or other mis-conduct. Such punishment can be reprimand
[Clause (b)], suspension from practice for a certain period [Clause (c)] and removal of
the name of the advocate from the State roll of advocate [Clause (d)], depending on

16 | P a g e
the gravity of the mis-conduct found established. The punishment of removal of the
name from the roll of advocates is called for where the misconduct is such as to show
that the advocate is unworthy of remaining in the profession. In this context, it may be
pointed out that under Section 24(A) of the Act a person who is convicted of an
offence involving moral turpitude is disqualified for being admitted as an advocate on
the State roll of advocates. This means that the conduct involving conviction of an
offence involving moral turpitude which would disqualify a person from being
enrolled as an advocate has to be considered a serious misconduct when found to have
been committed by a person who is enrolled as an advocate and it would call for the
imposition of the punishment of removal of the name of the advocate from the roll of
advocates. In the instant case respondent No. 1 has been convicted of the offence of
attempting to commit murder punishable under Section 307, IPC. He had assaulted his
opponent in the Court room with a knife. The gravity of the mis-conduct committed
by him is such as to show that he is unworthy of remaining in the profession. The said
mis-conduct, therefore, called for the imposition of the punishment of removal of the
name of respondent No. 1 from the State roll of advocates and the Disciplinary
Committee of the Bar Council of U. P., in passing the punishment of debarring
respondent No. 1 from practising for a period of three years, has failed to take note of
gravity of the misconduct committed by respondent No. 1. Having regard to the facts
of the case the proper punishment to be imposed on respondent No. 1 under Section
35 of the Act should have been to direct the removal of his name from the State roll of
advocates. The appeal filed by the appellant, therefore, deserves to be allowed. Finally
court held that the respondents name should be removed from the rolls.

Misbehaviour As Misconduct
Vinay chandra mishra, in re 15 facts; In this case a senior advocate in on being asked
a question in the court started to shout at the judge and said that no question could
have been put to him. He threatened to get the judge transferred or see that
impeachment motion is brought against him in Parliament. He further said that he has
turned up many Judges and created a good scene in the Court. He asked the judge to

15 (1995) 2 SCC 584

17 | P a g e
follow the practice of this Court. he wanted to convey that admission is as a course
and no arguments are heard, at this stage. But this act was not only the question of
insulting of a Judge of this institution but it is a matter of institution as a whole. In
case dignity of Judiciary is not being maintained then where this institution will stand.
The concerned judge wrote a letter informing the incident to the chief justice of India.
A show cause notice was issued to him. ISSUE: whether the advocate had committed
a professional misconduct? Is guilty of the offence of the criminal contempt of the
Court for having interfered with and obstructed the course of justice by trying to
threaten, overawe and overbear the Court by using insulting, disrespectful and
threatening language, and convict him of the said offence. Since the contemner is a
senior member of the Bar and also adorns the high offices such as those of the
Chairman of the Bar Council of India, the President of the U.P. HC Bar Association,
Allahabad and others, his conduct is bound to infect the members of the Bar all over
the country. We are, therefore, of the view that an exemplary punishment has to be
meted out to him. Thus the contemner Vinay Chandra Mishra is hereby sentenced to
undergo simple imprisonment for a period of six weeks and he shall stand suspended
from practising as an advocate for a period of three years.
Strike As Misconduct
Ex-capt. Harish uppal V. Union of India 16
Facts: Several Petitions raise the question whether lawyers have a right to strike
and/or give a call for boycotts of Court/s. In all these Petitions a declaration is sought
that such strikes and/or calls for boycott are illegal. As the questions vitally concerned
the legal profession, public notices were issued to Bar Associations and Bar Councils
all over the country. Pursuant to those notices some Bar Associations and Bar
Councils have filed their responses and have appeared and made submissions before
us.
Issue:Whether the lawyers have a right to strike.
Arguments: petitioners submitted that strike as a mean for collective bargaining is
recognised only in industrial disputes. He submitted that lawyers who are officers of
the Court cannot use strikes as a means to blackmail the Courts or the clients. He
submitted that the Courts must take action against the Committee members for giving
such calls on the basis that they have committed contempt of court. He submitted that
the law is that a lawyer who has accepted a Vakalat on behalf of a client must attend
16 2003(1)ALLMR(SC)1169
18 | P a g e
Court and if he does not attend Court it would amount to professional misconduct and
also contempt of court. He submitted that Court should now frame rules whereby the
Courts regulate the right of lawyers to appear before the Court. He submitted that
Courts should frame rules whereby any lawyer who mis-conducts himself and
commits contempt of court by going on strike or boycotting a Court will not be
allowed to practice in that Court. 17 He further submitted that abstention from work for
the redressal of a grievance should never be resorted to where other remedies for
seeking redressal are available. He submitted that all attempts should be made to seek
redressal from the concerned authorities. He submitted that where such redressal is
not available or not forthcoming, the direction of the protest can be against that
authority and should not be misdirected, e.g., in cases of alleged police brutalities
Courts and litigants should not be targeted in respect of actions for which they are in
no way responsible. He agreed that no force or coercion should be employed against
lawyers who are not in agreement with the strike call and want to discharge their
professional duties. Respondent submitted that lawyers had a right to go on strike or
give a call for boycott. He further submitted that there are many occasions when
lawyers require to go, on strike or gave a call for boycott. He submitted that this Court
laying down that going on strike amounts to misconduct is of no consequence as the
Bar Councils have been vested with the power to decide whether or not an Advocate
has committed misconduct. He submitted that this Court cannot penalise any
Advocate for misconduct as the power to discipline is now exclusively with the Bar
Councils. He submitted that it is for the Bar Councils to decide whether strike should
be resorted to or not.
Held: considering the sanctity of the legal profession the court had relied on words
said in case of In Indian Council of Legal Aid and Advice v. Bar Council of India18,
the SC observed thus : It is generally believed that members of the legal profession
have certain social obligations, e.g., to render pro bono publico service to the poor
and the underprivileged. Since the duty of a lawyer is to assist the court in the
administration of justice, the practice of law has a public utility flavour and, therefor,e
he must strictly and scrupulously abide by the Code of Conduct behoving the noble
profession and must not indulge in any activity which may tend to lower the image of
the profession in society. That is why the functions of the Bar Council include the

17 www.google.com accessed on 18th October 2016.

18 [1995]1SCR304
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laying down of standards of professional conduct and etiquette which advocates must
follow to maintain the dignity and purity of the profession.

Breach Of Trust By Misappropriating The Asset Of Client

Harish Chandra Tiwari v. Baiju;19
Facts: Appellant Harish Chandra Tiwari was enrolled as an advocate with the Bar
Council of the State of UP in May 1982 and has been practising since then, mainly in
the courts at Lakhimpur Kheri District in UP. Respondent Baiju engaged the
delinquent advocate in a land acquisition case in which the respondent was a claimant
for compensation. The Disciplinary Committee has described the respondent as an
old, helpless, poor illiterate person. Compensation of Rs. 8118/- for the acquisition
of the land of the said Baiju was deposited by the State in the court. Appellant applied
for releasing the amount and as per orders of the court he withdrew the said amount
on 2.9.1987. But he did not return it to the client to whom it was payable nor did he
inform the client about the receipt of the amount. Long thereafter, when the client
came to know of it and after failing to get the amount returned by the advocate,
compliant was lodged by him with the Bar Council of the State for initiating suitable
disciplinary action against the appellant.
Held: Court held that among the different types of misconduct envisaged for a legal
practitioner misappropriation of the clients money must be regarded as one of the
gravest. In this professional capacity the legal practitioner has to collect money from
the client towards expenses of the litigation, or withdraw money from the court
payable to the client or take money of the client to be deposited in court. In all such
cases, when the money of the client reaches his hand it is a trust. If a public servant
misappropriates money he is liable to be punished under the present Prevention of
Corruption Act, with imprisonment which shall not be less than one year. He is certain
to be dismissed from service. But if an advocate misappropriates money of the client
there is no justification in de-escalating the gravity of the misdemeanour. Perhaps the
dimension of the gravity of such breach of trust would be mitigated when the
misappropriation remained only for a temporary period. There may be justification to
award a lesser punishment in a case where the delinquent advocate returned the
money before commencing the disciplinary proceedings.

19 2002 SCC (Cri,) 294 (SC): AIR 2002 SC 548

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Informing About Bribe : Misconduct
Shambhu Ram Yadav v. Hanuman Das Khatry,20 It was that Court upheld the order of
bar council of India dated 31st July 1999, which held that the appellant has served as
advocated for 50 years and it was not expected of him to indulge in such a practice of
corrupting the judiciary or offering bribe to the judge and he admittedly demanded
Rs.10,000/- from his client and he orally stated that subsequently order was passed in
his clients favour. This is enough to make him totally unfit to be a lawyer by writing
the letter in question. We cannot impose any lesser punishment than debarring him
permanently from the practice .His name should be struck off from, the roll of
advocates maintained by the Bar Council of Rajasthan. Hereafter the appellant will
not have any right to appear in any Court of Law, Tribunal or any authority. Court
impose a cost of Rs. 5,000/- to the appellant which should be paid by the appellant to
the Bar Council of India which has to be within two months.
Conclusion: The role of the lawyers in the society is of great importance. They being
part of the system of delivering justice holds great reverence and respect in the
society. Each individual has a well defined code of conduct which needs to be
followed by the person living in the society. A lawyer in discharging his professional
assignment has a duty to his client, a duty to his opponent, a duty to the court, a duty
to the society at large and a duty to himself. It needs a high degree of probity and
poise to strike a balance and arrive at the place of righteous stand, more so, when
there are conflicting claims. While discharging duty to the court, a lawyer should
never knowingly be a party to any deception, design or fraud. While placing the law
before the court a lawyer is at liberty to put forth a proposition and canvass the same
to the best of his wits and ability so as to persuade an exposition which would serve
the interest of his client and the society.

20 (2001) 6 SCC 1. 165

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CHAPTER 5
CONCLUSION

After ruling that breach of professional conduct by lawyers was unacceptable, the
Supreme Court on Monday accepted apologies from a group of advocates to save
them from undergoing six months in jail for abusing a Faridabad judge in open court
in 1999.

It was senior advocate Ram Jethmalanis pleadings the lawyers were sincere in
their apologies to the high court as well as to the trial court judge and have undertaken
never to repeat the conduct that saved the erring advocates from prison term
awarded to them by the Punjab and Haryana HC.

Though a bench comprising Justices P Sathasivam and B S Chauhan accepted the

apologies, it sounded a stern yet anguished warning to the lawyer community. It said
lawyers have a social duty to adhere to exemplary conduct as their duties were as
important as that of a judge.
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Any violation of the principles of professional ethics by an advocate is unfortunate
and unacceptable. Ignoring even minor violation/misconduct militates against the
fundamental foundation of the public justice system. An advocate should be dignified
in his dealings to the court, to his fellow lawyers and to the litigants, said Justice
Sathasivam writing the judgment for the bench.

The Faridabad lawyers must count themselves lucky for escaping punishment for their
contemptuous act. For, the bench said that in contempt of court cases, acceptance of
an apology from a contemnor should only be a matter of exception and not that of a
rule.

A court, be that of a magistrate or the Supreme Court, is sacrosanct. The integrity

and sanctity of an institution which has bestowed upon itself the responsibility of
dispensing justice ought to be maintained. All functionaries, be it advocates, judges
and the rest of the staff, ought to act in accordance with the morals and ethics, the
bench said.

BIBLIOGRAPHY

BOOKS REFERRED

Sanjeev Rao, Indian Advocates Act, 1971.

M.P. Jain, Indian Legal History (Chap. On Legal Profession).
Krishna Murthy Iyers Book on Advocacy.
The Contempt of Courts Act, 1971.
Journal of Bar Council of India.

URL VISITED ON

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1. http://flashnewstoday.com/index.php/sc-breach-of-professional-ethics-by-lawyers-
unacceptable/ 19/10/2016

2. http://www.thetop.in/news/breach-of-professional-ethics-by-lawyers-unacceptable-
sc 20/10/2016

3. http://onespot.wsj.com/indian-politics/2011/05/09/2b818/breach-of-professional-
ethics-by-lawyers 21/10/2016

4. http://lite.epaper.timesofindia.com/getpage.aspx?
articles=yes&pageid=9&max=true&articleid=Ar00900&sectid=4edid=&edlabel=TOI
CH&mydateHid=10-05-2011&pubname=Times+of+India
22/10/2016

5. http://www.vpmthane.org/law1/Princ-
Articles/Client_Counseling_for_Tomorrow.pdf 22/10/2016

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