CHANAKYA NATIONAL LAW UNIVERSITY

PROJECT REPORT – PROFESSIONAL ETHICS

FINAL DRAFT SUBMITTED IN FULFILLMENT OF THE COURSE OF

PROFESSIONAL ETHICS FOR THE COMPLETION OF THE B.B.A.LLB.
(Hons.) COURSE

ASSIGNED TOPIC:

RATIO OF AN ADVOCATE VS B.B HARADARA (AIR1989 SC 98)

SUBMITTED BY

RAJAT KASHYAP

ROLL NUMBER: 1423

SUBMITTED TO

Dr. Anshuman Pandey

ASSISTANT PROFESSOR (LAW)

 ACKNOWLEDGEMENT

I take this opportunity to express my humble gratitude and personal regards to Dr. Anshuman
Pandey, for inspiring us and guiding us during the course of this project work and also for his
cooperation and guidance from time to time during the course of this project work on the topic
“RATIO OF AN ADVOCATE VS B.B HARADARA ”.

RAJAT KASHYAP

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Research Methodology

Aims and Objectives:

The aim of the project is to present a detailed study of ‘RATIO AN ADVOCATE VS BB

HARADARA’

Scope and Limitations:

The project is basically based on the doctrinal method of research as no field work is done on
this particular topic. The whole project is made with the use of the secondary sources.

Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical and
descriptive.

Mode of Citation:

The researcher has followed uniform form of citation throughout the course of this research
paper.

Sources of Data:

The following secondary sources of data have been used in the project-

1. Books

2. Websites

3. Statute

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Table of Contents
Act...........................................................................................................................................5
Headnote................................................................................................................................5
INTRODUCTION.......................................................................................................................6
CASE STUDY.............................................................................................................................8
CONCLUSION:........................................................................................................................18
BIBLIOGRAPHY......................................................................................................................19

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Act

Advocate’s Act-Sec. 38 Professional misconduct standard of proof-Required of-Section 35-

Procedure to be followed at the inquiry by Bar Council.

Headnote

The appellant is an Advocate. Gautam Chand was one of his old clients. The complainant-
Respondent No. l engaged the appellant on being introduced by Gautam Chand to file a Suit
against Shri S. Anantaraju for recovery of a sum of Rs.30,098 with Court costs and interest in the
Court of City Civil Judge at Bangalore. The appellant passed on the papers to his junior advocate
to file the Suit which he did. The complainant’s allegation is that the matter in dispute in the suit
had not been settled at all and the appellant without the knowledge and without his instructions
filed a memo in the Court to the effect that the matter has been settled out of Court and
accordingly got the suit dismissed and also received half of the institution court fee;
about which the complainant was not aware, nor was he informed by the appellant. The
complainant’s allegation is that he was not informed about the dates of hearing of the suit; when
inquired he was simply told that the case is posted for filing written-statement where his
presence was not neces- sary. When nothing was heard by the complainant from the appellant
about the progress of his suit, he personally made inquiries and came to learn to his great surprise
that the suit in question had in fact been withdrawn as settled out of Court.
The version of the appellant Advocate is that Gautam Chand, his old client, had business
dealings with the plaintiffs, Haradara (Complainant) and the defendant Anantaraju. Anantaraju
had also executed an agreement on 9.8.80 to sell his house property to Gautam Chand. He
received earnest money amounting to Rs.35,000 from Gautam Chand. Anantaraju however did
not execute the sale deed within the specified time. Gautam Chand approached the appellant for
legal advice. The appellant caused the issue of notice to Anantaraju calling upon him to execute
the sale deed. A notice was also issued on behalf of the complainant calling upon the defendant
Anantaraju demanding certain amounts due on 3 self bearer cheques amounting to PG NO 362
Rs.30,098 issued by him in course of their mutual transactions.
Gautam Chand and the complainant were friends having no conflict of interests Gautam Chand
instructed the appellant and his junior Ashok that he was in possession of the said cheques issued
by Anantaraju and that no amount was actually due from Anantaraju to Haradara Complainant.
Gautam Chand desired Anantaraju to execute the sale deed. Anantaraju executed the sale deed
on 27.11.81 in favour of Gautam Chand, even though an order of attachment before judg- ment
in respect of the said property was in existence. Consequent on the execution of the sale deed,
the object of the suit was achieved. The complainant did not at any time object. In this back
ground, the appellant had reasons to believe the information re: settlement of dispute conveyed
by the three together on 9.12.81. Acting on the said information, the appellant asked Ashok his
erstwhile junior to take steps to withdraw the suit, which he did on 10.12.8l as per instructions
received from the appellant noted on the docket of the brief.

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The state Bar Council, called for the comments of the appellant relating to the complaint. No
charge was framed specifying the nature and content of the professional misconduct attributed to
the appellant. Nor were any issues framed or prints for determination formulated. Instead thereof
the Bar Council proceeded to record evidence. As the case could not be concluded within the
time limit, the matter came to be transferred to the Bar Council of India.
The Bar Council off India addressed itself to the three questions, viz.
(i) Whether the complainant was the person who entrusted the brief to the appellant and
whether the brief was entrusted by the complainant to the appellant.
(ii) Whether report of settlement was made without instructions or knowledge of the
complainant?
(iii) Who was responsible for reporting settlement and instructions of the complainant ?
The Disciplinary Committee of the Bar Council of India after considering the matter
found appellant guilty of professional misconduct and suspended him for practising
his profession for 3 years on the charge of having withdrawn a suit (not settled)
without the instruction of the clients.
PG NO 363 The appellant has filed the appeal u,s 38 of the Advocates Act. The following
questions arose for consideration by this Court.
(i) Whether a specific charge should have been framed apprising the appellant of the true
nature and content of the professional misconduct ascribed to him:

(ii) Whether the doctrine of benefit of doubt and the need of establishing the basic
allegations were present in the mind of the Disciplinary Authority in recording the
finding of guilt or in determining the nature and extent of the punishment inflicted on
him;

(iii) Whether in the absence of the charge and finding of dishonesty against him the
appellant could be held guilty of professional misconduct even on the assumption that
he had acted on the instructions of a person not authorised to act on behalf of his
client if he was acting in good faith and in a bona fide manner. Would it amount to
lack of prudence or non-culpable negligence or would it constitute professional
misconduct.
Disposing of the appeal, the Court,

INTRODUCTION
An Advocate v. B.B. Haradara and others1 the Supreme Court held that the applicant had not
been afforded reasonable and fair opportunity of showing cause inasmuch as the applicant was
not apprise of the exact conduct of the professional misconduct attributed to him and was not
aware of the precise charge, he was require to rebut. The conclusion reached by the Disciplinary
Committee in the impugned order further shows that in recording the finding of the facts on the

1
AIR 1989 SC 245

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three question, the applicability of the doctrine of benefit of drought and need for establishment
the facts beyond reasonable doubt, were not relished. Nor did the Disciplinary Committee
consider the question as to whether the facts established that the applicant was acting with bona
fides or mala fides, whether the applicant was acting with any oblique or dishonest motive,
whatever there was any mens rea, whether the facts constituted negligence and if so whether it
constituted culpable negligence. Nor has the Disciplinary committee considered the question as
regard the quantum of punishment in the light of the aforesaid considerations and the exact
nature of the professional miscount established against the appellant. The impugned order passed
by the Disciplinary committee, therefore, cannot be sustained.

In this case, the question pertained to the ethics of the profession which the law as entrusted to
the Bar Council of India. It is their opinion in the case that must receive due weight. Now, it is
for the Bar Council of India to consider whether it would constitute an imprudent act, an unwise
act, a negligent act, or whether it constitute negligence and if so a culpable negligence or whether
it constitute a professional misconduct deserving severe punishment, even when it was establish
or at least not established beyond motive or with mala fides.

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CASE STUDY

Civil Appeal No. 316 ot 1987. From the Judgment and Order dated 31.12.1986 of the
Disciplinary Committee of the Bar Council of India in B.C.I.

Transfer Case No. 407 of 1985. S.S. Javali and Raju Ramachandra for the Appellant.
Ravinder Bhat, N. Ganapathy and Promod Swarup for the Respondents .

The Judgment of the Court was delivered by THAKKAR, J. A hast of questions of seminal
significance, not only for the Advocate who has been suspended from practising his profession
for 3 years on the charge of having withdrawn a suit (as settled) without the instructions from his
client, but also for the members of the legal profession in general have arisen in this appeal:

1. Appeal under section 38 of the Advocates Act, 1961.

(1) Whether a charge apprising him specifically of the precise nature and character of the
professional misconduct ascribed to him needs to be framed?
(2) Whether in the absence of an allegation or finding of dishonesty or mens rea a finding of guilt
and a punishment PG NO 365 of this nature can be inflicted on him?
(3) Whether the allegations and the finding of guilt require to be proved beyond reasonable
doubt? (4) Whether the doctrine of benefit of doubt applies? (5) Whether an Advocate acting
bona fide and in good faith on the basis of oral instructions given by some one purporting to act
on behalf of his client, would be guilty of professional misconduct or of an unwise or imprudent
act, or negligence simpliciter, or culpable negligence punishable as professional misconduct?
The suit was a suit for recovery of Rs.30,098 (Suit No. 65/81 on the file of Additional City Civil
Judge, Bangalore). It appears that the complainant had entrusted the brief to the appellant which
he in his turn had entrusted to his junior colleague (respondent No. 2 herein) who was attached to
his Office and was practising along with him at his office at the material time. At the point of
time when the suit was withdrawn, respondent No. 2 was practising on his own having set up his
separate office. On the docket of the brief pertaining to the suit, the appellant made an
endorsement giving instructions to withdraw the suit as settled. A sketch was drawn on the back
of the cover to enable the person carrying the brief to the junior colleague to locate his office in
order to convey the instructions as per the endorsement made by the appellant. The allegations
made by the complainant against the appellant are embodied in paragraphs 1 & 2 of his
complaint:

1. The petitioner submits that he entrusted a matter to the Second Respondent to file a case
against Shri S. Anantaraju for recovery of a sum of Rs.30,098 with Court costs and
current interest in Case No. O.S. 1965/81 on the file of the City Civil Judge at Bangalore.
The Petitioner submits that the said suit was filed by the first respondent who was then a
Junior of the Second respondent. The petitioner submits that the matter in dispute in the
suit was not settled at all and the first respondent without the knowledge and without the
instructions of the petitioner has filed a memo stating that the matter is settled out of
Court and got the suit dismissed and he has also received half of the institution court fee
within l0 days since the PG NO 366 date of the disposal of the suit. The petitioner

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 submits that he has not received either the suit amount or the refund of court fee and he is
not aware of the dismissal of the suit as settled out of court.

2. The petitioner submits that when the case was posted for filing of written statement itself
the first respondent has filed such a memo stating that the suit was settled out of Court.
The petitioner submits that in fact, the respondents did not even inform the petitioner
about the dates of hearing and when the petitioner asked the dates of hearing the
respondents informed the petitioner stating that his presence is not required in the Court
since the case was posted for filing of written statement and therefore .

the petitioner did not attend the Court on that day. The petitioner submits that when he enquired
about the further date of hearing the respondents did not give the date and said that they would
verify the next date of hearing since they have not attended the case since the case was posted for
filing written statement by the defendant. The petitioner submits that when he himself went to
the Court and verified he found to his great surprise that the suit is dismissed as settled out of
court and latter learnt that even the half of the institution court fee is also taken by the first
respondent within 10 days.

The version of the appellant may now be unfolded:

(1) One Gautam Chand (R.W.3) has been a longstanding Client of the appellant. Gautam Chand
had business dealing with the plaintiff Haradara and the Defendant Anantaraju.
Besides. Anantaraju executed an agreement dated 9.8.1980 to sell his house property to Gautam
Chand. He received earnest money in the sum of rupees 35,000 from Gautam Chand.
Anantaraju, however, did not execute the sale deed within the stipulated period and during the
extended period It was in these circumstances that Gautam Chand (RW 3) approached the
appellant for legal advice.

(2) It is the common case of parties that Gautam Chand introduced the complainant Haradara to
the appellant and his colleague Advocate respondent No. 2.

(3) The appellant caused the issue of notice dated 1.6.1981 (Ex. R/15) on behalf of Gautam
Chand addressed to PG NO 367 the seller Anantaraju calling upon him to execute the sale dead.
On the same date, a notice was separately issued on behalf ot the complainant Haradara
addressed to Anantaraju demanding certain amounts due on the three `self’ bearer cheques
aggregating, Rs.30,098 issued by Anantaraju in course of their mutual transactions. This notice
was issued by the Advocate respondent No.2 acting on behalf of the complainant Haradara.

(4) Gautam Chand (RW 3) and Haradara (PW 1) were friends. Anantaraju was their common
adversary. There was no conflict of interests as between Gautam Chand and Haradara.
Gautam Chand instructed the appellants and his colleague respondent No. 2. Ashok, that he was
in possession of the said cheques issued by Anantaraju and that no amount was actually due from
Anantaraju to the complainant Haradara Gautam Chand was desirous of stops to induce
Anantaraju to execute the sale deed in his favour.

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(5) A suit being O.S. No. 1965 of 1981 was instituted on behalf of the complainant Haradara
claiming on amount of Rs. 30,000 and odd, from the defendant Anantaraju on the basis of the
aforesaid cheques. It was instituted on 30.6.1981. An interlocutary application was moved on
behalf of Haradara by respondent No. 2 as his Advocate seeking the attachment before judgment
of the immovable property belonging to the defendant Anantaraju. The property was in fact the
subject of an agreement to sell between Anantaraju and Gautam Chand (RW 3) The Court
initially declined to grant an order of attachment. In order to persuade the Court, certain steps
were taken through the said Gautam Chand. He caused the Publication of a notice stating that the
property in question was the subject matter of an agreement between Anantaraju and himself and
it should not be dealt with by anyone. The publication of this notice was relied upon
subsequently on behalf of the complainant Haradara by his advocate (respondent No. 2). Ashok
in seeking an order of attachment. The Court accepted his submissions and passed the order of
attachment.
(6) Subsequently the defendant Anantaraju executed the sale deed dated 27th Nov., 1981 in
favour of Gautam Chand.
The object of the suit was achieved. The sale deed was in PG NO 368 fact executed during the
subsistence of the order of attachment concerning the same property. The plaintiff Haradara has
not objected to it at any time. Consistently, the appellant had reasons to believe the information
of settlement of dispute conveyed by the three parties together on 9.12.1981.
(7) Gautam Chand (RW (7)) and the complainant Haradara acted in interest and scoured the
attachment of property which was the subject matter of an agreement to sell in favour of Gautam
Chand. The suit instituted in the name of the complainant Haradara was only for the benefit of
Gautam Chand by reference to his interest in the property.

(8) The appellant conveyed information of the settlement of dispute by his note made on the
docket. He drew a diagram of the location of residence of the respondent No. 2 Ashok Advocate.
(Ex. R-1A at page 14 Additional Documents). The papers were delivered to respondent No. 2
Ashok Advocate by Gautam Chand (PW 3).

(9) After satisfying himself, respondent No. 2 Ashok advocate appeared in Court on 10.12.81
and filed a Memo prepared in his handwriting recording the fact of settlement of dispute and
seeking withdrawal of the suit. The Court passed order dated 10.12.1981 dismissing the suit,
O.S. No. 1965 of 1981. (10) Even though the plaintiff Haradara gained knowledge of the
disposal of suit, he did not meet the appellant nor did he address him for over 1-1/2 years until
May, 1983. He did not also immediately apply for the restoration of suit.
An application for restoration was filed on the last date of limitation on 11.1.1982. The
application Misc. 16 of 1982 was later allowed to be dismissed for default on 30.7.1982. It was
later sought to be revived by application Misc. No. 581 of 1982. Necessary orders were obtained
on 16.7.1988. Thus Misc. 16 of 1982 (Application for restoration of suit) is pending in Civil
Court.

On a survey of the legal landscape in the area of disciplinary proceedings this scenario emerges:

(1) In exercise of powers under section 35 contained in Chapte V entitled “conduct of

Advocates”, on receipt of PG NO 369 a complaint against an Advocate (or suo motu) if

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 the State Bar Council has `reason to believe’ that any Advocate on its role 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 practise 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 Sec. S) 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 Rules (1) 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 (2).
At this juncture it is appropriate to articulate some basic principles which must inform the
disciplinary proceedings against members of the legal profession in proceedings under
Section 35 of the Advocates Act, read with the relevant Rules:

1. Published in Gazette of India on September 6, 1975 in Part III Section (pages 1671 to 1697).
PG NO 370 (i) essentially the proceedings are quasi-criminal in character inasmuch as a Member
of the profession can be visited with penal consequences which affect his right to practice the
profession as also his honour; under Section 35(3)(d) of the Act, the name of the Advocate found
guilty of professional or other misconduct can be removed from the State Roll of Advocates.
This extreme penalty is equivalent of death penalty which is in vogue in criminal jurisprudence
The Advocate on whom the penalty of his name being removed from the roll of Advocate is
imposed would be deprived of practising the profession of his choice, would be robbed of his
means of livelihood, would be stripped of the name and honour earned by him in the post and is
liable to become a social apartheid. A disciplinary proceeding by a statutory body of the
Members of the profession which is statutorily empowered to impose a punishment including a
punishment of such immense proportions in quasi-criminal in character;

(ii) as a logical corollary it follows that the Disciplinary Committee empowered to conduct the
enquiry and to inflict the punishment on behalf of the body, in forming an opinion must be

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guided by the doctrine of benefit of doubt and is under an obligation to record a finding of guilt
only upon being satisfied beyond reasonable doubt.
It would be impermissible to reach a conclusion on the basis preponderence of evidence or on the
basis of surmise, conjucture or suspicion. It will also be essential to consider the dimension
regarding mens rea.
This proposition is hardly open to doubt or debate particularly having regard to the view taken by
this Court in L.D. Jaisinghani v. Naraindas N. Punjubi, [1976] 3 SCR 354 wherein Ray, CJ.,
speaking for the Court has observed:
`In any case. we are left in doubt whether the complainant’s version. with which he had come
forward with considerable delay was really truthful. We think that, in a case of this nature,
involving possible disbarring of the advocate concerned, the evidence should be of a character
which

2. Rule 8(1) “The Disciplinary Committee shall hear the Attorney General or the Solicitor
General of India or the Advocate General, as the case may be or their Advocate, and parties or
their Advocate, if they desire to be heard, and determine the matter on documents and affidavits
unless it is of the opinion that it should be in the interest of justice to permit cross examination of
the deponents or to take oral evidence, in which case the procedure for the trial of civil suits,
shall as far as possible be followed.” PG NO 371 should leave no reasonable doubt about guilt.
The Disciplinary Committee had not only found the appellant guilty but had disbarred him
permanently.” (Emphasis added).

(iii) in the event of a charge of negligence being levelled against an Advocate, the question will
have to be decided whether negligence simpliciter would constitute misconduct. It would also
have to be considered whether the standard expected from an Advocate would have to answer
the test of a reasonably equipped prudent practitioner carrying reasonable workload A line will
have to be drawn between tolerable negligence and culpable negligence in the sense of
negligence Which can be treated as professional misconduct exposing a Member of the
profession to punishment in the course of disciplinary proceedings. In forming the opinion on
this question the standards of professional conduct and etiquette spelt out in Chapter 2 of Part VI
of the Rules governing Advocates, framed under Section 60 (3) and Section 49(1)(g) of the Act,
which form a part of the Bar Council of India Rules may be consulted. As indicated in the
preamble of the Rules, an Advocate shall, at all times compose himself in a manner befitting his
status as an Officer of the Court, a privileged member of the community and a gentleman bearing
in mind what may be lawful and moral for one who is not a member of the bar may still be
improper for an Advocate and that his conduct is required to conform to the rules relating to the
duty to the Court, the duty to the client, to the opponent, and the duty to the colleagues, not only
in letter but also in spirit.
It is in the light of these principles the Committee would be required to approach the question as
regards th guilt or otherwise of an Advocate in the context of professional misconduct levelled
against him. In doing so apart from conforming to such procedure as may have been outlined in
the Act or the Rules, the Disciplinary Authority would be expected to exercise the power with
full consciousness and awareness of the paramount consideration regarding principles of natural
justice and fair play.
The State Bar Council, after calling for the comments of the appellant in the context of the
complaint, straightway proceeded to record the evidence of the parties. No charge was framed
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specifying the nature and content of the professional misconduct attributed to the appellant. Nor
PG NO 372 were any issues framed or points for determination formulated. The Disciplinary
Committee straightway proceeded to record evidence. As the case could not be concluded within
the prescribed time limit the matter came to be transferred to the Bar Council of India which has
heard arguments and rendered the order under appeal.
The questions which have surfaced are:
(1) Whether a specific charge should have been framed apprising the appellant of the true nature
and content of the professional misconduct ascribed to him? (2) Whether the doctrine of benefit
of doubt and the need for establishing the basic allegations were present in the mind of the
Disciplinary Authority in recording the finding of guilt or in determining the nature and extent of
the punishment inflicted on him? (3) Whether in the absence of the charge and finding of
dishonesty against him the appellant could be held guilty of professional misconduct even on the
assumption that he had acted on the instructions of a person not authorised to act on behalf of his
client if he was acting in good faith and in a bona fide manner. Would it amount to lack of
prudence or nonculpable negligence or would it constitute professional misconduct? Now so far
as the procedure followed by the State Bar Council at the Enquiry against the appellant, is
concerned it appears that in order to enable the concerned Advocate to defend himself properly,
an appropriate specific charge was required to be framed. No doubt the Act does not outline the
procedure and the Rules do not prescribe the framing of a charge. But then even in a
departmental proceeding in an enquiry against an employee, a charge is always framed.
Surely an Advocate whose honour and right to earn his livelihood are at stake can expect from
his own professional brethern. what an employee expects from his employer? Even if the rules
are silent, the paramount and overshadowing considerations of fairness would demand the
framing of a charge. In a disciplinary proceeding initiated at the level of this Court even though
the Supreme Court Rules did not so prescribe, in re: Shri `M' an Advocate of the Supreme Court
of India [1956] SCR page 811(814) this Court framed a charge after making these observations:
PG NO 373 We treated the enquiry in Chambers as a preliminary enquiry and heard arguments
on both sides with reference to the matter of that enquiry. We came to conclusion that this was
not a case for discharge at that stage. We accordingly reframed the charges framed by our
learned brother, Bhagwati J., and added a fresh charge. No objection has been taken to this
course. But it is as well to mention that, in our opinion, the terms of Order IV, rule 30 of the
Supreme Court Rules do not preclude us from adopting this course, including the reframing of,
or adding to, the charges specified in the original summons, where the material at the preliminary
enquiry justifies the same. The fresh enquiry before us in Court has proceeded with reference to
the following charges as reframed and added to by us.” It would be extremely difficult for an
Advocate facing a disciplinary proceeding to effectively defend himself in the absence of a
charge framed as a result of application of mind to the allegations and to the question as regards
what particular elements constituted a specified head of professional misconduct.
The point arising in the context of the non-framing of issues has also significance. As discussed
earlier Rule 8(1) enjoins that “the procedure for the trial of Civil suits, shall as far as possible be
followed.'' Framing of the issues based on the pleadings as in a Civil suit would be of immense
utility. The controversial matters and substantial questions would be identified and the attention
focussed on the real and substantial factual and legal matters in contest. The parties would then
become aware of the real nature and content of the matters in issue and would come to know (l)
on whom the burden rests (2) what evidence should be adduced to prove or disprove any matter
(3) to what end cross examination and evidence in rebuttal should be directed. When such a

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procedure is not adopted there exists inherent danger of miscarriage of justice on account of
virtual denial of a fair opportunity to meet the case of the other side. We wish the State Bar
Council had initially framed a charge and later on framed issues arising out of the pleadings for
the sake of fairness and for the sake of bringing into forefront the real controversy.
In the light of the foregoing discussion the questions arising in the present appeal may now to be
examined. In substance the charge against the appellant was that he had withdrawn a suit as
settled without the instructions from the complainant. It was not the case of the complainant that
PG NO 374 the appellant had any dishonest motive or that he had acted in the matter by reason
of lack of probity or by reason of having been won over by the other side for monetary
considerations or otherwise. The version of the appellant was that the suit which had been
withdrawn had been instituted in a particular set of circumstances and that the complainant had
been introduced to the appellant for purposes of the institution of the suit by an old client of his
viz. RW 3 Gautam Chand. The appellant was already handling, a case on behalf of RW 3
Gautam Chand against RW 4 Anantharaju. The decision to file a suit on behalf of the
complainant against RW 4 Anantharaju was taken in the presence of RW 3 Gautam Chand. It
was at the instance and inspiration of RW 3 Gautam Chand that the suit had been instituted by
the complainant, but really he was the nominee of Gautam Chand and that the complainant
himself had no real claim on his own. It transpires from the records that it was admitted by the
complainant that he was not maintaining any account books in regard to the business and he was
not an Income-tax assessee. In addition,the complainant (PW 1) Haradara himself has admitted
in his evidence that it was Gautam Chand who had introduce him to the appellant, and that he
was in fact taken to the office of the appellant for filling the said suit, by Gautam Chand. It was
this suit which was withdrawn by the appellant. Of course it was withdrawn without any written
instruction from the defendant against whom he had filed the suit for recovery of Rs.
30,000 and odd through Gautam Chand and that he did not know the defendant intimately or
closely. He also admitted that the cheques used to be passed in favour of the party and that he
was not entitled to the entire amount. He used to get only commission.
Since even on the admission of the complainant himself he was taken to the office of the
appellant for instituting the suit, by RW 3 Gautam Chand, and old client of th appellant whose
dispute with the defendant against whom the complainant had filed the suit existed at the
material time and was being handled by the appellant. The defence of the appellant that he had
withdrawn the suit in the circumstances mentioned by him required to be considered in the light
of his admissions. The defence of the appellant being that the suit was withdrawn under the oral
instructions of the complainant in the presence of RW 3 Gautam Chand and RW 4 Anantharaju
and inasmuch as RWs 3 and 4 supported the version of the appellant on oath, the matter was
required to be examined in this background. Assuming that the evidence of the appellant
corroborated by RWs 3 and 4 in regard to the presence of the complainant was not considered
acceptable, the question would yet arise as to PG NO 375 whether the withdrawal on the part of
the appellant as per the oral instructions of RW 3 Gautam Chand who had taken the complainant
to the appellant for instituting the suit, would amount to professional misconduct. Whether the
appellant had acted in a bona fide manner under the honest belief that RW 3 Gautam Chand was
giving the instructions on behalf of the complainant required to be considered. If he had done so
in a bona fide and honest belief would it constitute professional misconduct, particularly having
regard to the fact that nO allegation regarding corrupt motive was attributed or established? Here
it has to be mentioned that the appellant had acted in an open manner in the sense that he had in

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his own hand made endorsement for withdrawing the suit as settled and sent the brief to his
junior colleague.
If the appellant had any oblique motive or dishonest intention. he would not have made the
endorsement in his own hand.
No doubt Rule 19 contained in Section 2 captioned `Duty to the clients' provides that an
Advocate shall not act on the instructions of any person other than his client or his authorised
agent. If, therefore, the appellant had acted under the instructions of RW 3 Gautam Chand bona
fide believing that he was the authorised agent to give instructions on behalf of the client, would
it constitute professional misconduct? Even if RW 3 was not in fact an authorised agent of the
complainant, but if the appellant bona fide believed him to be the authorised agent having regard
to the circumstances in which the suit came to be instituted, would it constitute professional
misconduct? Or would it amount to only an imprudent and unwise act or even a negligent act on
the part of the appellant? These were questions which directly arose to which the Committee
never addressed itself. There is also nothing to show that the Disciplinary Committee has
recorded a finding on the facts and the conclusion as regards the guilt in full awareness of the
doctrine of benefit of doubt and the need to establish the facts and the guilt beyond reasonable
doubt. As has been mentioned earlier, no charge has been formulated and framed, no issues have
been framed. The attention of the parties was not focussed on what were the real issues. The
appellant was not specifically told as to what constituted professional misconduct and what was
the real content of the charge regarding the professional misconduct against him.
In the order under appeal the Disciplinary Committee has addressed itself to three questions viz.
PG NO 376 (i) Whether the complainant was the person who entrusted the brief to the appellant
and whether the brief was entrusted by the complainant to the appellant? (ii) Whether report of
settlement was made without instruction or knowledge of the complainant? (iii) Who was
responsible for reporting settlement and instructions of the complainant? In taking the view that
the appellant had done so probably with a view to clear the cloud of title of RW 3 as reflected in
paragraph 22 quoted herein, the Disciplinary Committee was not only making recourse to
conjucture.
surmise and presumption on the basis of suspicion but also attributing to the appellant a motive
which was not even attributed by the complainant and of which the appellant was not given any
notice to enable him to meet the charge:
“It is not possible to find out as to what made PW 2 to have done like that. As already pointed
out the house property which was under attachment had been purchased by RW 3 during the
subsistence of the attachment. Probably with a view to clear the cloud of title of RW 3, PW 2
might have done it. This is only our suspicion. Whatever it might be, it is clear that RW 2 had
acted illegally in directing RW l to report settlement.” In our opinion the appellant has not been
afforded reasonable and fair opportunity of showing cause inasmuch as the appellant was not
apprised of the exact content of the professional misconduct attributed to him and was not made
aware of the precise charge he was required to rebut. The conclusion reached by the Disciplinary
Committee in the impugned order further shows that in recording the finding of facts on the three
questions, the applicability of the doctrine of benefit of doubt and need for establishing the facts
beyond reasonable doubt were not realised. Nor did the Disciplinary Committee consider the
question as to whether the facts established that the appellant was acting with bona fides or with
mala fides, whether the appellant was acting with any oblique or dishonest motive, whether there
was any mens rea, whether the facts constituted negligence and if so whether it constituted
culpable negligence. Nor has the Disciplinary Committee considered the question as regards the

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quantum of punishment in the light of the aforesaid considerations and the exact nature of the
professional misconduct established against the appellant. PG NO 377 The impugned order
passed by the Disciplinary Committee, therefore cannot be sustained. Since we do not consider it
appropriate to examine the matter on merits on our own without the benefit of the finding
recorded by the Disciplinary Committee of the apex judicial body of the legal profession, we
consider it appropriate to remit the matter back to the Disciplinary Committee. As observed by
this Court in O.N. Mohindroo v. The District Judge, Delhi and Anr., Supreme Court Bar
Association, [1971] 3 SCC 5 in paragraph 23 quoted hereinbelow, we have no doubt that the
Disciplinary Committee will approach the matter with an open mind:
“From this it follows that questions of professional conduct are as open as charges of cowardice
against Generals for reconsideration of the conviction of persons convicted of crimes. Otherwise
how could the Hebron brothers get their conviction set aside after Charles Peace confessed to the
crime for which they were charged and held guilty?'' We must explain why we consider it
appropriate to remit the matter back to the Bar Council of India. This matter is one pertaining to
the ethics of the profession which the law has entrusted to the Bar Council of India. It is their
opinion of a case which must receive due weight because in the words of Hidayatullah, CJ, in
Mohindroo's case:
“This matter is one of the ethics of the profession which the law has entrusted to the Bar Council
of India. It is their opinion of a case which must receive due weight.'' It appears to us that the Bar
Council of India must have an opportunity to examine the very vcxed and sensitive question
which has arisen in the present matter with utmost care and consideration. the question being of
great importance for the entire profession. We are not aware of any other matter where the apex
body of the profession was required to consider whether the bona fide act of an Advocate who in
good faith acted under the instructions of someone closely connected with his client and
entertained a bona fide belief that the instructions were being given under the authority of his
client, would be guilty of misconduct. It will be for the Bar Council of India to consider whether
it would constitute an imprudent act, an unwise act. a negligent act or whether it constituted
negligence and if so a culpable negligence, or whether it constituted a professional misconduct
deserving severe punishment, even when it was not established or atleast not PG NO 378
established beyond reasonable doubt that the concerned Advocate was acting with any oblique or
dishonest motive or with mala fides. This question will have to be determined in the light of the
evidence and the surrounding circumstances taking into account the doctrine of benefit of doubt
and the need to record a finding only upon being satisfied beyond reasonable doubt. In the facts
and circumstances of the present case, it will also be necessary to re-examine the version of the
complainant in the light of the foregoing discussion keeping in mind the admission made by the
complainant that he was not maintaining any books of accounts and he was not an Income-tax
assessee and yet he was the real plaintiff in the suit for Rs.30,000 and odd instituted by him, and
in the light of the admission that it was RW 3 Gautam Chand who had introduced him to the
appellant and that he was in fact taken to the office of the appellant, for filing the suit, by RW 3
Gautam-Chand. The aforesaid question would arise even if the conclusion was reached that the
complainant himself was not present and had not given instructions and that the appellant had
acted on the instructions of RW 3 Gautam Chand who had brought the complainant to the
appellant's office for instituting the suit and who was a close associate of the complainant.
Since all these aspects have not been examined at the level of the Bar Council, and since the
matter raises a question of principle of considerable importance relating to the ethics of the
profession which the law has entrusted to the Bar Council of India, it would not be proper for

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this Court to render an opinion on this matter without the benefit of the opinion of the Bar
Council of India which will accord close consideration to this matter in the light of the
perspective unfolded in this judgment both on law and on facts. We are reminded of the high
degree of fairness with which the Bar Council of India had acted in Mohindroo's case. The
Advocate concerned was suspended from practice for four years. The Bar Council had dismissed
the appeal.
Supreme Court had dismissed the Special Leave Petition summarily. And yet the whole matter
was reviewed at the instance of the Bar Council and this Court was persuaded to grant the
review. A passage extracted from Mohindroo's case deserves to be quoted in this connection:
“37. We find some unusual circumstances facing us. The entire Bar of India are of the opinion
that the case was not as satisfactorily proved as one should be and we are also of the same
opinion. All processes of the Court are intended to secure justice and one such process is the
power of review.
No doubt frivolous reviews are to be discouraged and technical rules have been devised to
prevent persons from PG NO 379 reopening decided cases. But as the disciplinary committee
themselves observed there should not be too much technicality where professional honour is
involved and if there is a manifest wrong done, it is never too late to undo the wrong. This Court
possesses under the Constitution a special power of review and further may pass any order to do
full and effective justice. This Court is moved to take action and the Bar Council of India and the
Bar Association of the Supreme Court are unanimous that the appellant deserves to have the
order disbarring him from practice set aside.
We have therefore no doubt that upon the matter being remitted to the Bar Council of India it
will be dealt with appropriately in the light of the aforesaid perspective. We accordingly allow
this appeal, set aside the order of the Bar Council in so far as the appellant is concerned and
remit the matter to the Bar Council of India. We. however, wish to make it clear that it will not
be open to the complainant to amend the complaint or to add any further allegation. We also
clarify that the evidence already recorded will continue to form part of the record and it will be
open to the Bar Council of India to hear the matter afresh on the same evidence. It is understood
that an application for restoration of the suit which has been dismissed for default in the City
Civil Court at Bangalore has been made by the complainant and is still pending before the Court.
It will be open to the Bar Council of lndia to consider whether the hearing of the matter has to be
deferred till the application for restoration is disposed of. The Bar Council of India may give
appropriate consideration to all these questions.
We further direct that in case the judgment rendered by this Court or any part thereof is reported
in Law Journals or published elsewhere, the name of the appellant shall not be mentioned
because the matter is still subjudice and fairness demands that the name should not be specified.
The matter can be referred to as an Advocate v. The Bar Council or in re. an Advocate without
naming the appellant. The appeal is disposed of accordingly. No order regarding costs.

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CONCLUSION:

An advocate while discharging his professional assignment has a duty towards 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
requires high degree of probity and poise to strike a balance to arrive at the place of righteous
stand, during the times when there are conflicting claims. An advocate is also an office of the
Court who has the responsibility to render services of sound quality. Deficiency is services in the
nature of absence when the matters are scheduled, filing of incomplete and inaccurate pleadings,
lots of time even illegible and without personal check and verification, the nonpayment of court
fees and process fees amount to deficiency in work. Usually the act of an Advocate affects only
to his clients but in certain circumstances persons who are directly injured by the acts of the
advocates or omissions can also bring an action against him. An Advocates liability to the
disappointed beneficiary is recognised in many jurisdictions. Legal profession does not allow an
advocate to withdraw his liability for deficiency in services. If a legal professional contracts out
his liability for deficiency in services such acts are barred under Law and puts prohibition against
such activities to protect the interests of the clients from the unscrupulous legal professionals.
According to the study there is a lot of variation in the characteristics of legal malpractice cases.
The dimensions characterizing lawyers’ malpractice are more extensive in nature and the issues
that arise differ in important ways depending on those dimensions. As one would expect, there is
a lot of variation in the characteristics of legal malpractice cases. We would argue that the
variation in this area of professional negligence is substantially greater than in the most visible
area, medical negligence. The dimensions characterizing lawyers’ malpractice are more
extensive than those characterizing medical malpractice, and the issues that arise differ in
important ways depending on those dimensions. The relationship which is shared between an
advocate and his client is a relationship of trust also known as fiduciary relationship. In this a
lawyer is responsible and has the liability to keep the conversation relating to case matters
private and maintain secrecy. If such measurements are not being taken by an advocate hired by
a person to resolve the matter involving and having knowledge of Law which thus requires a
legal professional to deal with certain matters by productively using his competence. If the
advocate does not respect the relationship and fail to maintain the secrecy about the case matter
therefore he is deficient in rendering quality sound service which he is bound to render. I want to
conclude that it is not the number of laws or the out-dated or old laws which cause problem but it
is the ineffective and incompetent mechanism which implement them are the real problems.

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BIBLIOGRAPHY

Websites
 http://lawtimesjournal.in/equal-access-to-law-and-justice/.
 https://blog.ipleaders.in/role-of-lawyers-in-the-legal-system/.
 https://www.srdlawnotes.com/2017/09/duties-of-advocate-towards-court-and.html.
 https://shodhganga.inflibnet.ac.in/bitstream/10603/128118/11/09_chapter%205.pdf.
 http://www.legalserviceindia.com/article/l396-Role-Of-Advocates-In-Implementation-of-
Legal-Aid-Schemes.html.
 https://www.srdlawnotes.com/2016/10/advocates-duty-to-render-legal-aid.html.
 https://doj.gov.in/news/service-legal-aid-pro-bono-advocates-launched-department-
justice-0.
 https://sci.gov.in/legal-aid.

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