Professional Conduct and Etiquette (Ethics)-Paper-3 – AOR Examination

Bar Council Rules on Professional Conduct and Etiquette

1. Bar Council of India Rules, Chapter II – Section I – Duty to court Standards of Professional Conduct and Etiquette Rules 1 to 10 [ Rules under section 49(1)(c), Advocates Act, 1961]

  • Section II – Duty to Client Rules 11 to 33
  • Section III – Duty to Opponent Rules 34 & 35
  • Section IV – Duty to Colleagues Rules 36 to 44B
  • Section V – Duty in Imparting Training Rule 45
  • Section VI – Duty to Render Legal Aid Rule 46
  • Section VII – Restriction on Other Employments Rules 47 to 52

2. District Bar Association v. Ishwar Shandilya 2020 SCC OnLine SC 244

3. Harish Uppal (Ex-Capt.) v. Union of India  (2003) 2 SCC 45

Thus the law is already well settled. It is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day and for prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that Courts are under an obligation to hear and decide cases brought before it and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Association expressing want of confidence in judicial officers it would amount to scandalising the Courts to undermine its authority and there by the Advocates will have committed contempt of Court. Lawyers have known, at least since Mahabir Singh’s case (supra) that if they participate in a boycott or a strike, their action is ex-facie bad in view of the declaration of law by this Court. A lawyer’s duty is to boldly ignore a call for s trike or boycott of Court/s. Lawyers have also known, at least since Roman Services case, that the Advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call. [Para-20]

Professional Misconduct and Unethical Practices

4. Harish Chander Singh v. S.N. Tripathi, 8 (1997) 9 SCC 694[Duping Client by misusing his confidence]

5. P.D. Khandekar v. Bar Council of Maharashtra, (1984) 2 SCC 556 [Improper legal advice]

6. C.D. Sekkizhar v. Secretary, Bar Council, 1966 SCC OnLine Mad 181[Advertising profession]

7. S.J. Chaudhary v. State (Delhi Admn.), 3 (1984) 1 SCC 722

Failure to appear in court after accepting brief: Breach of professional duty

8. Harish Chander Singh v. S.N. Tripathi, (1997) 9 SCC 694

Duping Client by misusing his confidence

9 Deepak Kansal v. The Registrar General of the High Court of Judicature at Madras (2019) 16 SC 407

Advocate not to cast aspersions on Registry on Hon’ble Court

10 V.C. Rangadurai vs. D. Gopalan 1979 SCR (1) 1054

Lawyer to disclose conflict of interest to client

11 Byram Pestonji Gariwal vs. Union Bank of India (1992) 1 SCC 31

Lawyer cannot act without client’s authority

12 Narain Pandey vs. Pannalal Pandey (2013) 11 SCC 435

Lawyer cannot act without client’s authority

Scope and Ambit of Misconduct

13 Noratanmal Chaurasia vs. M. R. Murli (2004) 5 SCC 689

14 Shambhuram Yadav vs. Hanumandas Khatri AIR 2001 SC 2509

15 NG Dastane vs. Shrikant S. Shivde AIR 2001 SC 2028

16 Central Bureau of Hyderabad vs. K. Narayan Rao (2012) 9 SCC 512

17 State of Punjab v. Ram Singh AIR 1992 SC 2188

Misconduct arising out of Advocate’s Fees

18 Rajendra Pai vs. Alex Fernandes AIR 2002 SC 1808

19 D.S. Dalal v. State Bank of India AIR 1993 SC 1608

20 L.C. Goyal v. Suresh Joshi AIR 1999 SC 2222

21 R.D. Saxena vs. Balram Prasad Sharma (2000) 7 SCC 264

Advocate do not have lien for his fees

22 John D’souza v. Edward Ani 1994 (2) SCC 64

Punishment for Misconduct under BCI Rules

23 Narain Pandey vs. Pannalal Pandey (2013) 11 SCC 435

24 Harish Chandra Tiwari vs. Baiju 2002 (2) SCC 67

25 Hikmat Ali Khan vs. Ishwar Prasad Arya AIR 1997 SC 464

26 R.K. Anand vs. Registrar, Delhi High Court (29.07.2009 – SC) (2009) 8 SCC 106

27 Mahipal Singh Rana vs. State of UP (2016)8SCC335

28 R Muthu Krishnanan vs. RG of High Court of Judicature of Madras (2019) 16 SCC 407.

Disciplinary Proceedings under BCI

29 Bar Council of Andhra Pradesh vs. Karupati Satyanarayana AIR 2003 SC 178

30 Bar Council of Maharashtra vs. V. Dabholkar and Ors. (1975) 2 SCC 702

Lawyers Strike is Contempt

31 Common Cause, A Registered Society v. Union of India, 2-4 (2006) 9 SCC 304

Bar Council’s power to take action against strike.

32 District Bar Association Dehradun v. Ishwar Shandilya,2021 SCC OnLine SC 1071

Bar Councilor Bar Association cannot permit calling of a meeting for purposes of considering a call for strike.

33 Krishnakant Tamrakar v. State of M.P.  (2018) 17 SCC 27

34 Mahabir Prasad Singh v. Jacks Aviation (P) Ltd 35 (1999) 1 SCC 37

Hussain v. Union of India, 27, (2017) 5 SCC 702

Lawyer’s strike and suspension of court – Illegal.

36 Praveen Pandey v. State of M.P.2018 SCC OnLine MP 281

State Bar Council’s call to strike – illegal

Role & Responsibility of Amicus Curiae

37 Anokhilal v. State of M.P. (2019) 20 SCC 196

guidelines for appointment of amicus curiae

38 Mukesh v. State (NCT of Delhi)  39 (2016) 14 SCC 416

Mohd. Sukur Ali v. State of Assam,(2011) 4 SCC 729

Bar Council Rules on Advertising & Solicitation

41 Rule 36, Section IV, BCI Rules: (amended in 2008 by Resolution No. 50/2008)

42 Rule 36, r/w S. 49(1)(c), Advocates Act, 1961: “Lawyers are not conferred with the right to advertise and publicize their work, with the aim to solicit clients.”

The said amendment allows 5 pieces of information to be advertised on the internet i.e. –

(1) name of the firm, (2) address, telephone number s and email id, (3)(a) enrolment number,

(b) date of enrolment,

(c) name of State Bar Council where originally enrolled,

(d) name of the State Bar Council on whose roll name stands currently,

(e) name of the Bar Association of which the advocate is a member;

(4) professional qualifications and academic qualifications &;

(5) areas of practice.

Judgements on Advertisement and Solicitation

43 Bar Council of Maharashtra v. M. V. Dabholkar(1976) 2 SCC 291[Commercial procurement could vulgarize the legal profession]

44 Government Pleader v. S.A. Pleader, 1929 SCC OnLine Bom 128[Sending postcards amounts to advertisement]

45 ‘A’ an Advocate, In re, 1962 Supp (1) SCR 288 [Advocate soliciting – unworthy of the profession]

46 Rajendra V. Pai v. Alex Fernandes, (2002) 4 SCC 212

Advertisement, a part of Right Freedom of Speech

47 Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139

Advocate and Contempt

48 Supreme Court Bar Association vs. Union of India (UOI) and Ors. (1998 ) 4 SCC 409

49 Bar Council of India vs. High Court of Kerala (2004 ) 6 SCC 311

DISTINCTION BETWEEN CONTEMPT OF COURT AND MISCONDUCT BY AN ADVOCATE:

Punishment for commission of contempt and punishment for misconduct, professional or other misconduct, stand on different footings. A person does not have a fundamental right to practice in any court. Such a right is conferred upon him under the provisions of the Advocates Act which necessarily would mean that the conditions laid down therein would be applicable in relation thereto. Section 30 of the Act uses the expressions “subject to” which would include Section 34 of the Act.

In Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr. [2004 (1) SCALE 224] this Court noticed:

“Subject to” is an expression whereby limitation is expressed. The order is conclusive for all purposes.

This Court further noticed the dictionary meaning of “subject to” stating:

“Furthermore, the expression ‘subject to’ must be given effect to.

In Black’s Law Dictionary, Fifth Edition at page 1278 the expression “Subject to” has been defined as under :

“Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that;

provided, answerable for. Homan v. Employers Reinsurance Corp,., 345 Mo. 650, 136 S.W. 2d 289, 302”

CASE LAWS:

A Constitution Bench of this Court in Supreme Court Bar Association (supra) no doubt overruled its earlier decision in Vinay Chandra Mishra, Re [(1995) 2 SCC 584] so as to hold that this Court in exercise of its jurisdiction under Article 142 of the Constitution of India is only empowered to proceed suo motu against an advocate for his misconduct and send for the records and pass an appropriate orders against the advocate concerned.

But it is one thing to say that the Court can take suo motu cognizance of professional or other misconduct and direct the Bar Council of India to proceed against the advocate but it is another thing to say that it may not allow an advocate to practise in his court unless he purges himself of contempt.

Although in a case of professional misconduct, this Court cannot punish an advocate in exercise of its jurisdiction under Article 129 of the Constitution of India which can be imposed on a finding of professional misconduct recorded in the manner prescribed under the Advocates Act and the rules framed thereunder but as has been noticed in the Supreme Court Bar Association (supra); professional misconduct of the advocate concerned is not a matter directly in issue in the matter of contempt case.

In Supreme Court Bar Association (supra),however, this Court held:

“57. In a given case, an advocate found guilty of committing contempt of court may also be guilty of committing “professional misconduct”, depending upon the gravity or nature of his contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures. The power to punish an advocate by suspending his licence or by removal of his name from the roll of the State Bar Council for proven professional misconduct vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts.”

The constitution Bench, however, in no uncertain terms observed:

“80. In a given case it may be possible, for this Court or the High Court, to prevent the contemner advocate to appear before it till he purges himself of the contempt but that is much different from suspending or revoking his licence or debarring him to practise as an advocate. In a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate- on-Record, this Court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practice as an Advocate-on-Record because that privilege is conferred by this Court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his licence to practice as an advocate in other courts or tribunals.”

The Constitution Bench of this Court in Harish Uppal (supra) noticed the aforementioned observations stating:

“25…Thus a Constitution Bench of this Court has held that the Bar Councils are expected to rise to the occasion as they are responsible to uphold the dignity of Courts and majesty of law and to prevent interference in administration of justice. In our view it is the duty of Bar Councils to ensure that there is no unprofessional and/or unbecoming conduct.”

Holding that the right of appearance in courts is still within the control and jurisdiction of courts, this Court noticed:

“34…Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in Court can only be within the domain of Courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an Advocate) can practice in the Supreme Court and/or in the High Court and Courts subordinate thereto. Many Courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self restraint is exercised, Courts may now have to consider framing specific rules debarring Advocates, guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the Courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and orderly functioning of the Courts. The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the Courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. Such a rule would have nothing to do with all the acts done by an advocate during his practice. He may even file Vakalat on behalf of client even though his appearance inside the Court is not permitted. Conduct in Court is a matter concerning the Court and hence the Bar Council cannot claim that what should happen inside the Court could also be regulated by them in exercise of their disciplinary powers. The right to practice, no doubt, is the genus of which the right to appear and conduct cases in the Court may be a specie. But the right to appear and conduct cases in the Court is a matter on which the Court must and does have major supervisory and controlling power. Hence Courts cannot be and are not divested of control of supervision of conduct in Court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of Court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in Courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of Court proceedings. On the contrary it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to 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 is guilty of Contempt of Court or of unbecoming or unprofessional conduct, standing in the Court would erode the dignity of the Court and even corrode the majesty besides impairing the confidence of the public in the efficacy of the institution of the Courts. The power to frame such rules should not be confused with the right to practise law. While the Bar Council can exercise control over the latter, the Courts are in control of the former. This distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empowers the Bar Council to frame rules laying down conditions subject to which an Advocate shall have a right to practice i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the Court including inter alia rules as to persons practising before this Court. Similarly Section 34 of the Advocates Act empowers High Courts to frame rules, inter alia to lay down conditions on which an Advocate shall be permitted to practice in Courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an Advocate to appear in a Court. An Advocate appears in a Court subject to such conditions as are laid down by the Court. It must be remembered that Section 30 has not been brought into force and this also shows that there is no absolute right to appear in a Court. Even if Section 30 were to be brought into force control of proceedings in Court will always remain with the Court. Thus even then the right to appear in Court will be subject to complying with conditions laid down by Courts just as practice outside Courts would be subject to conditions laid down by Bar Council of India. There is thus no conflict or clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 of the Constitution of India on the other.”[Bar Council of India vs. High Court of Kerala (2004 ) 6 SCC 311]

50 Pravin C Shah vs. KA Mohd. (2001)8 SCC650

By giving expression to such a proposition the Bar Council of India has obviously overlooked the legal position laid down by the Constitution Bench in Supreme Court Bar Association vs. Union of India (supra). In paragraph 57 of the decision the Bench said thus: In a given case, an advocate found guilty of committing contempt of court may also be guilty of committing professional misconduct, depending upon the gravity or nature of his contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures. The power to punish an advocate by suspending his licence or by removal of his name from the roll of the State Bar Council for proven professional misconduct vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts.

A four Judge Bench of this Court in Mulk Raj vs. State of Punjab 1972 (3) SCC 839 made the following observations which would throw considerable light on the question before us:

Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace apology is aborn of penitence. If apology is offered at a time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and it becomes an act of a cringing coward. The High Court was right in not taking any notice of the appellants expression of apology without any further word. The High Court correctly said that acceptance of apology in the case would amount to allow the offender to go away with impunity after having committed gross contempt.

Thus a mere statement made by a contemnor before court that he apologises is hardly enough to amount to purging himself of the contempt. The court must be satisfied of the genuineness of the apology. If the court is so satisfied and on its basis accepts the apology as genuine the court has to make an order holding that the contemnor has purged himself of the contempt. Till such an order is passed by the court the delinquent advocate would continue to be under the spell of the interdict contained in Rule 11 of the Rules.

Shri Sadrul Anam, learned counsel for the respondent- advocate submitted first, that the respondent has in fact apologised before this Court through the counsel engaged by him, and second is that when this Court observed that this course should set everything at rest it should be treated as the acknowledgement made by this Court that the contemnor has purged himself of the guilt.

We are unable to accept either of the said contentions. The observation that this course should set everything at rest in the judgment of this Court cannot be treated as anything beyond the scope of the plea made by the respondent in that case. That apart, this Court was certainly disinclined to accept the apology so tendered in this Court which is clearly manifested from the outright repudiation of that apology when this Court said thus: We regretfully will not be able to accept his apology at this belated juncture, but would rather admonish the appellant for his conduct under our plenary powers under the constitution, which we do hereby.

The respondent-advocate continued to appear in all the courts where he was earlier appearing even after he was convicted by the High Court for criminal contempt without being objected by any court. This is obviously on account of the fact that presiding officers of the court were not informed of what happened. We, therefore, direct that in future, whenever an advocate is convicted by the High Court for contempt of court, the Registrar of that High Court shall intimate the fact to all the courts within the jurisdiction of that High Court so that presiding officers of all courts would get the information that the particular advocate is under the spell of the interdict contained in Rule 11 of the Rules until he purges himself of the contempt.

51 In re: Vinay Chandra Misra (1995)2 SCC 584 Inter-relation between Artile 129 and Article 142


%d bloggers like this: