Full Judgment Text
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PETITIONER:
PANDURANG DATTATREYA KHANDEKAR
Vs.
RESPONDENT:
THE BAR COUNCIL OF MAHARASHTRA, BOMBAY & ORS.
DATE OF JUDGMENT10/10/1983
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
MISRA, R.B. (J)
CITATION:
1984 AIR 110 1984 SCR (1) 414
1984 SCC (2) 556 1983 SCALE (2)495
ACT:
Appellate Jurisdiction-Appeal under Section 38 of the
Advocates Act, 1961-Interference by the concurrent finding
of fact by the Disciplinary Committee of the Bar Council-
Degree of proof required for a Disciplinary Proceeding,
explained.
Advocates Act, 1961, Section 35 (1)-Professional
Misconduct, meaning of-Distinction between giving of wrong
advice and improper legal advice-The having of improper
legal advice, may amount to professional misconduct.
HEADNOTE:
The appellant and another advocate were found guilty of
professional misconduct by the Disciplinary Committee of the
Bar Council of India by its order dated April 23, 1976. The
gravamen of the charge against them related to the giving of
improper legal advice on two specific counts. The
Disciplinary Committee held them guilty on both counts and
ordered the suspension of the appellant from practice for a
period of four months-and the other advocate for a period of
two months.
Allowing the appeal in part, the Court
^
HELD: 1.1 This Court would not, as a general rule, in
an appeal under s. 38 of the Advocates Act, 1961, interfere
with the concurrent findings of fact reached by the
Disciplinary Committee of the Bar Council of India and of
the State Bar Council unless they are based on no evidence
or proceed on mere conjectures and surmises. Finding in such
disciplinary proceedings must be sustained by higher degree
of proof than that required in civil suits, yet falling
short of the proof required to sustain a conviction in
criminal prosecution. There should be convincing
preponderance of evidence [419 B-C
2.1 The test of what constitutes "grossly improper
conduct in the discharge of professional duties" was been
laid down in many cases. The test to be applied is whether
an advocate, in the pursuit of his profession, has done
something with regard to it which would be reasonably
regarded as disgraceful or dishonorable by his professional
brethren. what is to say, whether the proved misconduct of
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the advocate is such that he must be regarded as unworthy to
remain as member of the honorable profession to which he has
been admitted and unfit to be entrusted with the responsible
duties that an advocate is called upon to perform. [419 E;
420 B-C]
415
In re: A. Solicitor Exparte the law society [1912] 1
K.B. 302; Allinson v. General Council of Medical Education
and Registration [19841 1 Q.B. 750; Geogre , Friar Grahame
v. Attorney General, Fiji AIR 1936 P.C. 224 quoted with
approval.
2.2 Charges of professional misconduct must be clearly
proved and should not be inferred from mere ground for
suspicion, however reasonable, or what may be error of
judgment or indiscretion. [420 C]
A pleader v. The Judges of the High Court of Madras,
AIR 1930 P.C. 144; referred to.
2.3 There is a distinction between the giving of
improper legal advice and the giving of wrong legal advice.
Mere negligence unaccompanied by any moral delinquency on
the part of an advocate in the exercise of his profession
does not amount to professional misconduct. There must be
proved that the advocate was guilty of moral turpitude or
that there was any moral delinquency on his part. [420 D-E]
In re: G. Mayor Cooke [1889] 33 Sol. Journal 397,
quoted with approval.
In re: A Vakil ILR [1925] 49 Mad 523, In re, An
Advocate, ILR [1935] 62 Cal 158: In the matter of an
Advocate of Agra ILR [1940] All 386 approved.
In the matter of P an Advocate [1964] 1 S.C.R. 697
applied.
For an advocate to act towards his client otherwise
than with utmost good faith is unprofessional. When an
advocate is entrusted with a brief, he is expected to follow
the norms of professional ethics and try to protect the
interests of his client in relation to whom he occupies a
position of trust. Counsel’s paramount duty is to the
client. When a person consults a lawyer for his advice, he
relies upon his requisite experience, skill and knowledge as
a lawyer, and the lawyer is expected to give proper and
dispassionate legal advice to the client for the protection
of his interests. An advocate stands in a loco parentis
towards the litigants and therefore follows that the client
is entitled to receive disinterested, sincere and honest
treatment especially where the client approaches the
advocate for succor in times of need. The members of the
legal profession should stand free from suspicion. [121 A-C]
3.2 Nothing should be done by any member of the legal
fraternity which might tend to lessen in any degree the
confidence of the public in the fidelity, honesty and
integrity of the profession. For an advocate to act towards
his client otherwise than with the utmost good faith is
unprofessional. It is against professional etiquette for a
lawyer to give that an advocate should accept employment
with such motive, or so long as his client has such
understanding for his purpose. It is professionally improper
for a member of the Bar to prepare false documents or to
draw pleadings knowingly that the, allegations made are
untrue to his knowledge. [421 F-H]
416
On merits, held that the evidence adduced by the
complainants falls short of the required proof although the
circumstances appearing do give rise to considerable
suspicion about the manner in which the advocates had been
conducting their affairs. It was accordingly held that the
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Disciplinary Committee of the Bar Council of India erred in
holding the advocates guilty of professional misconduct. The
proceedings drawn against them under sub-s (1) of s 35 of
the Act were accordingly dropped with an expression of hope
that they would not by their conduct or behaviour prove
themselves to be unworthy to remain as members of the legal
profession.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : CIVIL Appeal No. 720 of
1976.
Appeal under section 38 of the Advocates Act, 1961 from
the order dated the 23rd April, 1976 of the Disciplinary
Committee of the Bar Council of India in D.C. Appeal No, 11
of 1975.
V.J. Francis for the Appellant.
V.N. Ganpule and Mrs. V.D. Khanna for the Respondent
No. 1.
S. V. Tambekar for the Respondent.
The Judgment of the Court was delivered by
SEN, J. The disciplinary proceedings out of which this
appeal under s. 38 of the Advocates Act, 1961 (’Act’ for
short) has arisen were initiated on a complaint made by a
group of 12 advocates practising in the two courts of Sub-
Divisional Magistrates in the Collectorate of Poona alleging
various acts of professional misconduct against the
appellant P.D. Khandekar and one A.N. Agavane. The
proceedings stood transferred to the Bar Council of India
under s. 36B of the Act. The Disciplinary Committee of the
Bar Council of India by its order dated April 23, 1976 held
both the appellant and A.N. Agavane guilty of professional
misconduct and directed that the appellant be suspended for
a period of four months from June 1, 1976 and Agavane for a
period of two months therefrom. This Court by its order
dated September 24, 1976 admitted the appeal and stayed the
operation of the suspension of order.
First as to the facts. The Complainants alleged various
acts of professional misconduct against the appellant and
Agavane. According to them, the appellant and agavane
sometimes impersonated as other advocates for whom the
briefs were meant and at times they directly
417
approached the clients and adopted questionable methods
charging exorbitant fees. The State Bar Council referred to
four specific charges relating to them, two of impersonation
as A.D. Ghospurkar and N.L. Thatte and depriving these
gentlemen of the briefs meant for them. The State Bar
Council held that these two charges have not been
substantiated and the Disciplinary Committee of the Bar
Council of India has not gone into them. Both the
Disciplinary Committee of the Bar Council of India and the
State Bar Council however found the appellant and Agavane to
be guilty of giving improper legal advice and held the
charge of professional misconduct proved, but having regard
to the fact that they were junior members of the bar, the
Disciplinary Committee has taken a lenient view and passed
the sentence indicated above. In dealing with the question
of punishment to be imposed on them, the Disciplinary
Committee observes:
"We take into consideration the age of the
advocates the families they have to maintain, the
environments in which they practise and the standard
which is maintained in such on environment is not very
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high as the ’Bar Association Rules’ certify toutism and
provide for toutism which could be unthinkable anywhere
else."
The gravamen of the charge against the appellant and
Agavane relates to the giving of improper legal advice on
two specific counts, namely: (1) On January 7, 1974 the
appellant and Agavane are alleged to have got the remarriage
of a couple S.B. Potdar and Smt. Leelawati Dhavale performed
although their divorce was not legal. The accusation is that
the appellant and Agavane induced Potdar and Smt. Dhavale to
part with Rs. 100 towards their professional fee on the
faith of an assurance that the affidavit sworn by them
before the Sub-Divisional Magistrate, Poona to the effect
that they had divorced their respective spouses and had got
married at Poona on January 7, 1974 as per Hindu rites would
be sufficient proof of their marriage. (2) On February 22,
1374 the appellant and Agavane drew up an affidavit
containing a recital that Smt. Sonubai Girju Valekar of Loni
Bhapkar, Tehsil Baramati, District Poona had made a gift of
her lands to her grand-daughter Smt. Mangala Ramesh
Ghorpade. The charge is that she had met all the lawyers
except these two and all of them advised her to give the
market value of the land intended to be gifted and pay ad
valorem stamp duty thereon indicating the amount of stamp
duty and the registration charges payable, but these
418
two lawyers told her that she should not unnecessarily spend
a large A amount over the stamp duty and registration
charges and they would instead have the work done within an
amount of Rs. 50 which was finally settled at Rs.45. The
charges levelled against the appellant and Agavane are
serious enough and if true in a case like the present, the
punishment has to be deterrent, but the question still
remains whether the charges have been proved.
The appellant virtually pleads that the case against
him is a frame-up. As to the incident of January 7, 1974,
the appellant pleads that the affidavit sworn by Potdar and
Smt. Dhavale was prepared on their instructions as they
represented that they had divorced their respective spouses
and expressed that they wanted to marry each other on that
very day and leave Poona. His case is that they represented
that the priest was insisting upon an affidavit as regards
their divorce as a precaution before performing their
marriage and therefore they wanted to swear an affidavit to
that effect. Regarding the incident of February 22, 1974,
there was a complete denial that the appellant drew up an
affidavit containing a recital that Smt. Sonubai had made a
gift of her lands to her grand-daughter Smt. Mangala which
he handed over to her on receipt of Rs. 45 as his
professional fee.
The Disciplinary Committee has recorded a finding that
it did not consider that the conduct of the appellant and
Agavane amounted to cheating their clients, and that both
were guilty of giving improper legal advice, but these were
not cases of a bona fide mistake of a lawyer. With respect
to the first charge, it held that they had misled their
clients Potdar and Smt. Dhavale that the affidavit sworn by
them before the Sub-Divisional Magistrate and the
certificate of marriage issued by him would make them
legally married according to Hindu rites although no
marriage was ever performed. As regards the second charge,
the Disciplinary Committee held them to be guilty of not
giving proper legal advice to their client Smt. Sonubai. It
observed that if the gift deed could not be executed because
Smt. Sonubai had no sufficient funds to bear the cost of
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stamp duty and registration charges payable, the affidavit
was no substitute for that as it would hardly be evidence of
a gift. It further observed that it was unfortunate that the
appellant an Agavane did not advise Smt. Sonubai also to
execute a will contemporaneously in favour of her grand-
daughter Smt. Mangala because if the affidavit were
supplemented by an unregistered will, nothing would be
wrong.
419
It proceeded upon the view that the affidavit could be taken
as evidence that Smt. Sonubai had handed over possession of
her property to her grand-daughter Smt. Mangala and if the
latter possessed it for 12 years she would acquire title by
prescription and although the will may not be a deed of
gift, it would be the nearest approach to it.
In an appeal under s. 38 of the Act this Court would
not, as a general rule, interfere with the concurrent
finding of fact by the Disciplinary Committee of the Bar
Council of India and the State Bar Council unless the
finding is based on no evidence or it proceeds on mere
conjectures and surmises. Finding in such disciplinary
proceedings must be sustained by a higher degree of proof
than that required in civil suits, yet falling short of the
proof required to sustain a conviction in a criminal
prosecution. There should be convincing preponderance of
evidence.
It is argued that the finding as to professional
misconduct on the part of the appellant and Agavane reached
by the Disciplinary Committee was not based on any legal
evidence but proceeds on mere conjectures and surmises. The
case against the appellant and Agavane rests upon
professional misconduct and not any other conduct. The
question is whether there was any evidence upon which the
Disciplinary Committee could reasonably find that they have
been guilty of ’professional misconduct, within the meaning
of sub-s. of s. 35 of the Act. The test of what constitutes
"grossly improper conduct in the discharge of professional
duties" has been laid down in many cases. In the case of in
re Solicitor Ex parte the law Society, Darling, J. adopted
the definition of "infamous conduct in a professional
respect" on the part of a medical man in Allinson v. General
Council of Medical Education & Registration, applied to
professional misconduct on the part of a Solicitor, and
observed:
"If it is shown that a medical man, in the pursuit
of his profession, has done something with regard to it
which would be reasonably regarded as disgraceful or
dishonourable by his professional brethren of good
repute and competency, then it is open to the General
medical Council to say that he has been guilty of
’infamous conduct in a professional respect’."
420
The Privy Council approved of the definition in George Frier
Grahame v. Attorney General, Fiji and this Court in the
matter of P. An Advocate has followed the same. The narrow
question that remains for consideration now is whether the
finding of the Disciplinary Committee as to professional
misconduct on the part of the appellant can be legally
sustained. The test to be applied in all such cases is
whether the proved misconduct on the advocate is such that
he must be regarded as unworthy to remain a member of the
honourable profession to which he has been admitted, and
unfit to be entrusted with the responsible duties that an
advocate is called upon to perform. The Judicial Committee
of the Privy Council in, a Pleader v. The Judges of the High
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Court of Madras laid down that charges of professional
misconduct must be clearly proved and should not be inferred
from mere ground for suspicion, however reasonable, or what
may be error of judgment or indiscretion.
There is a world of difference between the giving of
improper legal advice and tho giving of wrong legal advice.
Mere negligence unaccompanied by any moral delinquency on
the part of a legal practitioner in the exercise of his
profession does not amount to professional misconduct. In re
A Vakil, Coutts Trotter, C.J. followed the decision in re G.
Mayor Cooke and said that:
"Negligence by itself is not professional
misconduct; into that offence there must enter the
element of moral delinquency. Of that there is no
suggestion here, and we are therefore able to say that
there is no case to investigate, and that no reflection
adverse to his professional honour rests upon Mr. M.’,
The decision was followed by the Calcutta High Court in re
An Advocate, and by the Allahabad High Court in the matter
of An Advocate of Agra and by this court in the matter of P.
An Advocate.
421
For an advocate to act towards his client otherwise
than with utmost good faith is unprofessional. When an
advocate is entrusted with a brief, he is expected to follow
norms of professional ethics and try to protect the
interests of his client in relation to whom he occupies a
position of trust. Counsel’s paramount duty is to the
client. When a person consults a lawyer for his advice, he
relies upon his requisite experience, skill and knowledge as
a lawyer and the lawyer is expected to give proper and
dispassionate legal advice to the client for the protection
of his interests. An advocate stands in a loco parentis
towards the litigants and it therefore follows that the
client is entitled to receive disinterested, sincere and
honest treatment especially where the client approaches the
advocate for succour in times of need. The members of the
legal profession should stand free from suspicion. In the
matter of P. An Advocate,(1) Page, C.J. in an oftquoted
passage after extolling the ideals that an advocate ought to
set before him, and the ancient and noble conception of his
office, observed:
"From this conception of the office of an advocate
it follows that the public are entitled to receive
disinterested, sincere and honest treatment and advice
from the advocates to whom they repair for counsel and
succour in their time of need; and it is for this
reason that Lord Mansfield laid down, and the Court has
always insisted, that members of the legal profession
"should stand free from all suspicion"."
Nothing should be done by any member of the legal
fraternity which might tend to lessen in any degree the
confidence of the public in the fidelity, honesty and
integrity of the profession. For an advocate to act towards
his client otherwise than with utmost good faith is
unprofessional. It is against professional etiquettee for a
lawyer to give that an advocate should accept employment
with such motive, or so long as his client has such
understanding of his purpose. It is professionally improper
for a member of the bar to prepare false documents or to
draw pleadings knowingly that the allegations made are
untrue to his knowledge. Thus the giving of improper legal
advice may amount to professional misconduct. That however
may not be so by the giving of wrong legal advice.
422
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It appears to us that there was abundant evidence upon
which the Disciplinary Committee could find the appellant
and Agavane guilty of giving wrong legal advice, but there
is considerable doubt whether upon such evidence the charge
of professional misconduct can be supported. In the instant
case, it is not at all certain that it can be said with
strict accuracy that the appellant was guilty of moral
turpitude or that there was any moral delinquency on his
part.
As to the first charge, the Disciplinary Committee has
found the appellant and Agavane to be guilty of drawing up a
false affidavit to the effect that Potdar and Smt. Dhavale
had been married at Poona on January 7, 1974 according to
Hindu rites although no such marriage was even performed.
Upon the evidence on record, it is difficult to believe that
Potdar and Smt. Dhavale could be prevailed upon to swear an
affidavit of the kind unless it was prepared on their
instructions or that they were induced to part with Rs. 100
towards the professional fee of the appellant and Agavane on
the faith of a false assurance that the affidavit would be
sufficient evidence in proof of their marriage. Potdar was
an Overseer and had put in an advertisement inviting
suitable proposals for his marriage. Smt. Dhavale held a
Diploma in Education and had been working as a Teacher in a
Primary School under the Zila Parishad, Satara. She had also
advertised in the papers seeking suitable proposals for her
marriage. Both of them corresponded with each other and
decided to get married and for this purpose they came to
Poona on January 7, 1974 for legal advice with respect to
their marriage. Incidentally, Smt. Dhavale who is a tribal
woman claims to have got a divorce by custom prevalent among
her tribe, whereas Potdar who was married earlier according
to Hindu rites presumably got his divorce by initiating
proceedings under the Hindu Marriage Act, 1955. They both
approached the appellant and Agavane and wanted their legal
advice and stated that they would like to get married and
leave Poona on the same day or, in other words, they were in
a hurry to get married. Ex. C-13 which inter alia states:
"We have today married at Poona as per Hindu rites" was
drawn up by the appellant and Agavane and signed by both the
parties before the Sub-Divisional Magistrate in English
after reading the contents. The recital in the affidavit
that they got married at Poona on January 7, 1974 according
to Hindu rites must have been made on their instructions.
They were both anxious to leave Poona
423
and brought a document styled as a marriage certificate
obtained under s. 5 of the Bombay Registration of Marriages
Act, 1953 under which even Hindu marriages have to be
registered. The document was signed by both Potdar and Smt.
Dhavale and also attested by one Gangadhar Laxman Jamkhedkar
who claimed to have acted as the priest and said to have
solemnised the marriage. There is nothing unprofessional for
an advocate to draft an affidavit on the instructions of his
client.
The testimony of Smt. Dhavale shows that she
accompanied by Potdar came to the Court of the Sub-
Divisional Magistrate on January 7, 1974 at 2.30 p.m. The
purpose of their visit is not very clear. At first, her
version was that she told the appellant and Agavane that
they wanted to have their marriage performed. She then added
that they told these lawyers that they wanted to get their
marriage registered. They both appeared before the Sub-
Divisional Magistrate and verified the affidavit Ex. C-13 to
be true to their personal knowledge. When confronted with
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the portion marked as "AA": "We have today married at Poona
as per Hindu rites", she asserted that she and Potdar had
not been married according to Hindu rites at Poona on
January 7, 1974 or at any time thereafter. She however
states that she was living with Potdar as she was under the
belief that she had been married to him. The fact remains
that she has also changed her surname to Smt. Potdar. It is
rather improbable that a Hindu lady like Smt. Potdar would
start living with a stranger as husband and wife and also
adopt a new surname unless there was a marriage. Both of
them were educated persons and they had the power to
understand what they were doing and therefore they being the
executants of the affidavit must be held bound by the
recitals contained therein. The oral evidence adduced by the
complainant was not sufficient to rebut the presumption
arising from the recitals coupled with the other
circumstances appearing.
The evidence with regard to the second charge, namely,
that the appellant and Agavane were guilty of not giving
proper legal advice to Smt. Sonubai is even less convincing.
It is quite possible that this old illiterate lady aged
about 90 years came to the Sub-Divisional Magistrate’s Court
with the purpose of executing a gift deed in favour of her
grand-daughter Smt. Mangala. There is however no real or
substantial evidence to connect the appellant with the
affidavit. The testimony of smt. Sonubai is wholly
inconclusive as to the identity
424
of the person who prepared the affidavit. She states in her
examination in-chief that she had entrusted the work of
execution of the gift deed to two advocates and that they
represented to her that the affidavit was a gift deed, but
added that she would not be also to identify them because
she had a weak eye-sight and was also hard of hearing for
the last 2/3 years and was not able to see or hear properly.
She further unequivocally admitted that she never approached
the appellant at any time for any work. It is difficult to
support the charge of professional misconduct against the
appellant on such evidence.
It must accordingly be held that the Disciplinary
Committee of the Bar Council of India erred in holding the
appellant and Agavane guilty of professional misconduct
because the evidence adduced by the complainants falls short
of the required proof, but the circumstances appearing do
give rise to considerable suspicion about the manner in
which they have been conducting their affairs, which defects
from the norms of professional ethics.
May be, the complainants were not actuated from a
purely altruistic motive in lodging the complaint but that
does not fully exonerate the appellant and Agavane of the
way they have been carrying on their activities. It appears
from the order of the Disciplinary Committee that some 12 to
14 advocates practising in the two Courts of the Sub
Divisional Magistrates in the Collectorate of Poona had
formed an association called the Poona Collectorate Bar
Association, the purpose of which was that the entire work
in the Collectorate should be pooled together. To attain
that object, the complainants employed servants for
collecting work from prospective clients on a percentage of
fees to be given to them and the work to be distributed
among the members. It further appears that the appellant and
Agvane were two junior lawyers who preferred not to become
members of the association, but started their practice
sitting under a tree in the Court precincts. Presumably, the
gentlemen of the bar who were members of the association
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found that their activities a were prejudicial to their
interests because they directly got in touch with the
clients and did the same kind of work with impunity by
adopting similar questionable methods. We can only express
the hope that these lawyers will, in future, see to it that
such improprieties as those referred to do not recur.
The Disciplinary Committee speaks of the "environments"
in which these lawyers work. The complainants have examined
four advocates to substantiate the charge against the
appellant and
425
Agavane viz. A.D. Ghospurkar, N.L. Thatte, T.S. Pariyani and
V.A. Mandake. The evidence of these lawyers shows that their
work mainly consists in attestation of witnesses. Their
appearance in cases were few and far between. They either
sit in the verandah near the stamp-vendor in front of the
Sub-Registrar’s office or in the Court compound with the
petition-writers or typists. To illustrate this, A.D.
Ghospurkar, who is an advocate of 8 years’ standing, frankly
admits that his main work is to indentify parties who come
to make affidavits before the Sub-Divisional Magistrates and
that his work of conducting cases is negligible. During his
8 years at the bar, he has done near about 10 to 12 chapter
cases and about 8 cases in other courts. The case presents a
dismal picture of the legal profession. We mean no
disrespect to the members of the Poona Collectorate Bar. The
conditions prevalent are more or less the same everywhere
and it is a matter of deep concern that nothing has been
done to organize the bar.
We regret to say that the complainants themselves are
not free from blemish. The Disciplinary Committee of the Bar
Council of India observes that the method adopted by the
complainants to procure work by employing agents itself
amounts to professional misconduct. It deprecates the
practice that is prevalent at the Poona Collectorate Bar and
observes with regard to the complainants:
"This means that the purpose of the Association
was to appoint certain touts who would get work for
their members and then the work will be distributed
among the members. Touting or appointing touts is not
consistent with the rules framed under the Advocates
Act and such practice would be considered professional
misconduct but that is exactly what the Bar Association
referred to above intend to do."
We are informed that disciplinary proceedings have since
been initiated against the complainants and therefore we
refrain from expressing any opinion on the impropriety of
their conduct.
The Preamble to Chapter II Part VI of the Rules lays
down that an advocate shall at all times comport himself in
a manner befitting his status as an officer of the Court
privileged member of the
426
community and a gentleman. Rule 36 of these rules provides
that an advocate shall not solicit work or advertise, either
directly or indirectly, whether by circulars,
advertisements, touts, personal communications etc. It is a
well recognized rule of etiquette in the legal profession
that no attempt should be made to advertise oneself or
solicit work directly or indirectly. In his ’Brief to
Counsel’, 5th edn., 1962, p. 94, the celebrated author Henry
Cecil administered a word of caution:
"Don’t go touting for work in any circumstances.
There are all sorts of ways of doing this. Don’t adopt
any of them. If you are going to get on, you will get
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on without doing that kind of thing, and if you are not
going to get on, the little extra work you get will not
either make you successful or counter-act the bad
impression you will make on many people inside and
outside the law."
We are constrained to say that the evil of touting has
been in existence since ancient times and still is a growing
menance, and the bar is open to the accusation of having
done nothing tangible to eradicate this unmitigated evil.
The persons most affected by this system are the junior
lawyers as a class. Some lawyers may well expound
unblushingly the doctrine of getting on, getting honour and
at last getting honest. If it is generally known that a
person however honest has got on and got honour through the
patronage of touts, the bar should decline to show such a
man any honour or consideration whatsoever. We impress upon
the Bar Council of India and the State Bar Councils that if
they still take strong action to eradicate this evil, it
would lead to a high standard of propriety and professional
rectitude which would make it impossible for a tout to turn
a penny within the precincts of the law courts.
Finally, it is the solemn duty of the Bar Council of
India and the State Bar Councils to frame proper schemes for
the training of the junior members of the bar, for
entrusting of work to them, and for their proper guidance so
that eventually we have new generation of efficiently
trained lawyers. It is regrettable that even after more than
two decades that the Advocates Act was brought on the
Statute Book, neither the Bar Council of India nor the State
Bar Councils
427
have taken any positive steps towards ameliorating the
conditions of the members of the bar, particularly of the
junior members. Sub-ss. (3) of ss. 6 and 7 of the Act
provide that the State Bar Councils and the Bar Council of
India may constitute one or more funds in the prescribed
manner for the purpose of (a) giving financial assistance to
organised labour welfare schemes for the indigent, disabled
or other advocates, and (b) giving legal aid or advice in
accordance with the rules made that behalf. Sub-ss. (3)
thereof provide that they may receive any grants, donations,
gifts or benefactions for the above purposes, which shall be
credited to the appropriate fund or funds under that sub-
section. The Bar Council of India and the State Bar Councils
hold very large funds, may be to the tune of rupees one
crore and above, but no positive steps have been taken in
organizing the legal profession and safeguarding the
interests of lawyers in general, particularly the junior
members of the bar. It is with a deep sense of anguish that
one finds the legal profession in a state of total disarray
and for the majority it is a continuous struggle for
existence. The hardest hit are the junior members. We expect
that the matter will receive the attention that it deserves.
In the result, the appeal partly succeeds and is
allowed. The order of the Disciplinary Committee of the Bar
Council of India holding the appellant and A.N. Agavane
guilty of professional misconduct is set aside. The
proceedings drawn against them under sub-s. (1) of s. 35 of
the Advocates Act, 1961 are dropped. We hope and trust that
they would not by their conduct or behaviour prove
themselves to be unworthy to remain as members of the great
profession to which they belong.
There shall be no order as to costs.
S.R. Appeal partly allowed.
428
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