CASE COMMENT

on
Pandurang Dattatraya Khandekar
v.
Bar Council of Maharashtra, Bombay and
Ors.

PROFESSIONAL ETHICS & PROFESSIONAL

ACCOUNTING SYSTEM (Clinical Course III)

Submitted
By
Simran Sethi
PRN 14010224047 BATCH OF 2014-19 Group
B

Symbiosis Law School, NOIDA

Symbiosis International (Deemed) University

In
February, 2019
 Under the Guidance of
Prof. Vikram Singh, Dr. Meenakshi Kaul & Ms. Mayuri
Raghuvanshi
Course-in-charge Symbiosis Law School, NOIDA

2
 CERTIFICATE
The project entitled “Case Comment: Pandurang Dattatraya KhandekarV Bar Council of
Maharashtra, Bombay and Ors. .” submitted to the Symbiosis Law School, NOIDA as part of
Internal Assessment is based on my original work carried out under the guidance of Prof.
Vikram Singh, Dr. Meenakshi Kaul & Ms. Mayuri Raghuvanshi from January to February. The
Research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the research paper has been
duly acknowledged.
I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the Candidate:

Date:

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Acknowledgements

I would like to acknowledge Mr. Vikram Singh, Dr.

Meenakshi Kaul & Ms. Mayuri Raghuvanshi, Course-
in-charge, Professional Ethics and Professional
Accounting System (Clinical Course III), Symbiosis
Law School, NOIDA for assigning this project to me
and giving me this wonderful opportunity to do a
detailed study on it.
I would further like to show my gratitude to Dr. CJ
Rawandale, Associate Professor and Director,
Symbiosis Law School.

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 CONTENTS

I. INTRODUCTION……………………………………………………………………………..5
II. BACKGROUND……………………………………………………………………………….
A. FACTS……………………………………………………………………………………….6
B. ISSUES……………………………………………………………………………………...7
C. RELEVANT LEGAL PROVISIONS………………………………………………….7
D. JUDGMENT……………………………………………………………………………….8
III. ANALYSIS ………………………………………………………………………………………9
IV. CONCLUSION……………………………………………………………………………….10
REFERENCES…………………………………………………………………………………11

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 INTRODUCTION

Throughout history, humanity has struggled with those aspects of our values and beliefs that
concern the morality of our conduct - what is right and wrong, good and bad, acceptable and
unacceptable behaviour. As values change and society attempts to cope with a myriad of
problems, many prompted by development in science and technology, new ethical issues
emerge and old ethical issues must be revisited. No other profession touches human life at so
many points than law. The people engaged in this profession while performing their
professional duties not only earn their livelihood, but also influence the lives and conditions
of life of many. A lawyer while lawyering, an advocate while doing advocacy is no doubt
making his own fortune, but in addition to that his art of lawyering, his techniques of
advocacy, his skills of argument, his scientific treatment to the law and the facts in hand cast
definite shadows on the conditions in society, lawyers make the most significant contribution
to the final outcome of justice system that is the court verdicts and judgment which ultimately
shape the future path of our society. The role of the lawyer is very central to the very vital
organ of the state that is judiciary.

A profession which is performing such vital service to the society must also be expected to
conduct itself to come up to the expectations of the society. His professional conduct must be
above board. A deviance on the part of the individual members of the legal profession has a
bearing on the interest, lives and conditions of the life of the members of the society.
Therefore, the society has an interest in the manner of regulation of the deviations, deviances
and delinquencies in the profession conduct of this profession. To meet this interest, the
standards of profession conduct called the legal ethics serve as instruments to regulate the
professional conduct. Law's nobility as a profession lasts only so long as the members
maintain their commitment to integrity and service to the community. The Advocates Act,
1961 as well Indian Bar Council are silent in providing exact definition for professional
misconduct because of its wide scope, though under Advocates Act, 1961 to take disciplinary
action punishments are prescribed when the credibility and reputation on the profession
comes under a clout on account of acts of omission and commission by any member of the
profession.1

1
Professional misconduct of lawyers in India available at http://www.legalservicesindia.com/article/1665/Professional-
misconduct-of-lawyers-in-india.html

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 PANDURANG DATTATRAYA KHANDEKAR V. BAR
COUNCIL OF INDIA AND ORS

I. FACTS OF THE CASE

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 approached the clients and adopted questionable methods charging exorbitant
fees.

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.

On February 22, 1974 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 two lawyers told her that she should not unnecessarily
spend a large 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.

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 Group of 12 advocate practicing in two courts of S.D. Ms in the collectorate of Pune
are the complainants both the state bar council and Bar Council of Delhi through
its disciplinary committee found the appellant and one Agvane Guilty of giving
improper legal advice and held the charge of professional misconduct provided the
and suspended the appellant for a period of 4 months and Agvane for a period of 2
months therefrom. Hence, an appeal was preferred.

II. ISSUES RAISED

1. Whether appellant has committed professional misconduct or not?

2. Was the order of the disciplinary committee of the bar council of India justified in
holding the appellants guilty of the professional misconduct and punishing them for
the same

III. RELEVANT LEGAL PROVISIONS

1. Section 35(1) of the Advocates Act, 1961 provides as under:

“35. Punishment of advocates for misconduct.—(1) Where on receipt of a complaint
or otherwise a State Bar Council has reason to believe that any advocate on its roll
has been guilty of professional or other misconduct, it shall refer the case for
disposal to its disciplinary committee.
1[(1A) The State Bar Council may, either of its own motion or on application made to
it by any person interested, withdraw a proceeding pending before its disciplinary
committee and direct the inquiry to be made by any other disciplinary committee of
that State Bar Council.] “

2. Section 38 of the Advocates Act, 1961 provides as under:

“38. Appeal to the Supreme Court.—Any person aggrieved by an order
made by the disciplinary committee of the Bar Council of India under
section 36 or section 37 2[or the Attorney-General of India or the
Advocate-General of the State concerned, as the case may be,] may
within sixty days of the date on which the order is communicated to
him, prefer an appeal to the Supreme Court and the Supreme Court may

8
 pass such order 1[(including an order varying the punishment awarded
by the disciplinary committee of the Bar Council of India)] thereon as it
deems fit:
1[Provided that no order of the disciplinary committee of the Bar Council of India shall be varied
by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a
reasonable opportunity of being heard.] “

IV. JUDGMENT

 The finding that the appellant is not guilty of professional misconduct.

 The sentence awarded by the disciplinary committee of the bar council of India
suspending the appellant for a period of 4 months and Agvane for a period of 2
months is set aside. The proceedings drawn against them under Sub-section (1) of
Section 35 of the Advocates Act, 1961 are dropped.

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 ANALYSIS OF THE JUDGMENT

In appeal, the supreme court observed that there is a difference between the giving of
improper advice and giving of wrong legal advice. Mere negligence unaccompanied by any
moral delinquency on the on the part of legal practitioner in the exercise of profession does
not amount to professional misconduct.
In para 8 of the judgment the apex court made reference to the re G. Mayor Cooke [1889] 33
Sol. Jour. 397 in which it was held 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.”

In Para 9 of the judgment the apex court highlights importance professional conduct and
ethics by placing reliance on P. An Advocate ILR [1933] 12 Rang. It was held in the
judgment that 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 he 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.

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In Para 11 of the judgement the apex court had reached a conclusion by analysing all the facts
and held that hat 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.
Furthermore the suprement court said that, 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. The Judgment is correct and clears the law. In arriving at the
conclusion, the reasoning given by the court is fairly consistent with the existing law.

CONCLUSION
The role of the lawyers in the society is of great importance. They being part of the system of
delivering justice holds great reverence and respect in the society. Each individual has a well
-defined code of conduct which needs to be followed by the person living in the society. A
lawyer in discharging his professional assignment has a duty to his client, a duty to his
opponent, a duty to the court, a duty to the society at large and a duty to himself. It needs a
high degree of probity and poise to strike a balance and arrive at the place of righteous stand,
more so, when there are conflicting claims. While discharging duty to the court, a lawyer
should never knowingly be a party to any deception, design or fraud. While placing the law
before the court a lawyer is at liberty to put forth a proposition and canvass the same to the
best of his wits and ability so as to persuade an exposition which would serve the interest of
his client and the society. The advocate, as an officer of the Court, also has the responsibility
to render services of sound quality. Lapses in services in the nature of absence when the
matters are called out, the filing of incomplete and inaccurate pleadings – many times even
illegible and without personal check and verification, the non-payment of court fees and
process fees, the failure to remove office objections, the failure to take steps to serve the
parties are not merely professional omission. They amount to positive dis-service to the
litigants and create embarrassing situation in the court leading to avoidable unpleasantness
and delay in the disposal of matters, and detrimentally affects the entire judicial system.
Furthermore, as the officers of the court the lawyers are required to uphold the dignity of the
judicial office and maintain a respectful attitude towards the Court. This is because the Bar
and the Bench form a noble and dynamic partnership geared to the great social goal of
administration of justice, and the mutual respect of the Bar and the Bench is essential for

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maintaining cordial relations between the two. It is the duty of an advocate to uphold the
dignity and decorum of the Court and must not do anything to bring the Court itself into
disrepute, and ensure that at no point of time, he oversteps the limits of propriety.

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 REFERENCES

STATUTE
 The Advocates Act, 1960

CASES

 Allinson v. General Council of Medical Education & Registration (1894) 1 QB 750

 Pandurang Dattatraya KhandekarV Bar Council of Maharashtra, Bombay and Ors.

ARTICLES
 NECESSITY OF PROFESSIONAL ETHICS AND EMERGING CHALLENGES
http://shodhganga.inflibnet.ac.in/bitstream/10603/127670/15/12_chapter%203.pdf
 Disciplining the Lawyers: Law and Professional Ethics G. Geethisha Cochin
University Law Review 2003
.
WEBSITES
 Legal Profession and ethics by Elbepeter accessed at
http://dspace.cusat.ac.in/jspui/bitstream/123456789/10810/1/Disciplining%20the
%20Lawyers%20_Law%20and%20Professional%20Ethics.PDF
 Professional misconduct of lawyers in India available at
http://www.legalservicesindia.com/article/1665/Professional-misconduct-of-lawyers-
in-india.html

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