SUBJECT:

PROFESSIONAL ETHICS
Project topic:
Ratio of An Advocate v b.b. haradara

Submitted By
Parth SHarma
Roll no. 1543
th th
5 Year , 9 Semester, B.A.LL.B(Hons.)

Submitted to
Dr. anshuman pandey
(Faculty of professional ethics)

Chanakya national Law University, Patna

OCTOBER, 2020

ACKNOWLEDGMENT
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I am highly elated to work on the topic Ratio of Advocate V BB
Haradara case. I take this opportunity to express my gratitude to the
people who have been instrumental in successful completion of the
project. I am thankful to my teacher who guided me. I would like to
enlighten my readers with my efforts. I have tried my best to bring
luminosity to this project.

I am thankful to my teacher and friends for providing me continuous

guidance. I am thankful to librarian who provided me required books
and necessary materials. I could not complete the project without their
assistance.

PARTH SHARMA

TABLE OF CONTENTS

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 PAGE NO.
S.I. NO. CHAPTER
1. 5-7
INTRODUCTION

2. PRIVILEDGED COMMUNICATION UNDER INDIAN 8-12

AND ENGLISH LAW

3. RATIO OF AN ADVOCATE v BB HARADARA 13-20

4. LANDMARK JUDGMENTS 21-24

5. CONCLUSION 25
6. BIBLIOGRAPHY 26

Aims and Objectives:

The researcher intends to understand the concept of privileged communication between client
and lawyer. The researcher will study landmark judgments based on this issue.

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Methodology Adopted

The researcher has primarily relied on the doctrinal method. The research is based on
comprehensive study of sources like text books, journals, articles, web sources etc.

Sources of Data

Primary Sources: Laws, Acts.

Secondary Sources: Books, Newspapers, Articles, Journals

Hypothesis:

The researcher believes that:

Communication between a lawyer and his client is protected however there are certain
exceptions to this rule.

CHAPTER 1 INTRODUCTION

Advocacy is a noble profession and an advocate is the most accountable, privileged and
erudite person of the society and his act are role model for the society, which are necessary to
be regulated. Professional misconduct is the behaviour outside the bounds of what is
considered acceptable or worthy of its membership by the governing body of a profession.
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Professional misconduct refers to disgraceful or dishonourable conduct not befitting an
advocate. ‘Misconduct’ per se has been defined to be “any transgression of some established
and definite rule of action, a forbidden act, unlawful or improper behavior, willful in
character, a dereliction of duty.”1The Supreme Court has, in some of its decisions, elucidated
on the concept of ‘misconduct’, and its application. In Sambhu Ram Yadav v. Hanuman
Das Khatry2, The Supreme Court, upholding the finding of the Rajasthan Bar Council held
that the legal profession is not a trade or business. Members belonging to the profession have
a particular duty to uphold the integrity of the profession and to discourage corruption in
order to ensure that justice is secured in a legal manner. The act of the advocate was
misconduct of the highest degree as it not only obstructed the administration of justice, but
eroded the reputation of the profession in the opinion of the public.3

If a lawyer fails in his or her responsibilities or ethical obligations his or her conduct may
constitute unsatisfactory professional conduct or professional misconduct.  These terms are
defined in the Legal Practitioner’s Act 1981 as follows:

“unsatisfactory professional conduct’ includes conduct of a legal practitioner occurring in

connection with the practice of law that falls short of the standard of competence and
diligence that a member of the public is entitled to expect of reasonably competent legal
practitioners.”4

Instances of Misconduct: Legal Practioners act 1879 has not defined the word Misconduct.
The word Unprofessional conduct is used in the act. Even the Advocates Act 1961 has not
defined the term misconduct because of the wide scope and application of the term. Hence to
understand the instances of misconduct we have to rely on decided cases.
1
Black’s Law Dictionary.

2
AIR 2001 SC 2509.

3
Professional Misconduct Of lawyers in India, http://www.legalservicesindia.com/article/article/professional-
misconduct-of-lawyers-in-india-1665-1.html, last seen on 23/10/2020.

4
Section 68 and 69 .

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Some of the instances of Professional misconduct are as follows,
1) Dereliction of duty
2) Professional negligence
3) Misappropriation
4) Changing sides
5) Contempt of court and improper behaviour before a magistrate
6) Furnishing false information
7) Giving improper advice
8) Misleading the clients in court
9) Non speaking the truth
10) Disowning allegiance to court
11) Moving application without informing that a similar application has been rejected by
another authority
12) Suggesting to bribe the court officials
13) Forcing the prosecution witness not to tell the truth.

Misbehaviour as Misconduct: Vinay chandra mishra, in re5; In this case a senior advocate in
on being asked a question in the court started to shout at the judge and said that no question
could have been put to him. He threatened to get the judge transferred or see that
impeachment motion is brought against him in Parliament. He further said that he has turned
up many Judges and created a good scene in the Court. He asked the judge to follow the
practice of this Court. But this act was not only the question of insulting of a Judge of this
institution but it is a matter of institution as a whole. In case dignity of Judiciary is not being
maintained then where this institution will stand. The concerned judge wrote a letter
informing the incident to the chief justice of India. A show cause notice was issued to him.
Whether the advocate had committed a professional misconduct? The contemnor Vinay
Chandra Mishra is hereby sentenced to undergo simple imprisonment for a period of six
weeks and he shall stand suspended from practising as an advocate for a period of three
years.

5
AIR 1995 SC 2348

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In Mahipal Singh Rana vs State Of UP 6 The 3-judge bench of A.R. Dave, Kurian Joseph and
A.K. Goel, JJ. took note of the provision under Section 24A which debars a convicted person
from being enrolled applies to an advocate on the rolls of the Bar Council for a period of two
years and said that a person convicted of even a most heinous offence is eligible to be
enrolled as an advocate after expiry of two years from expiry of his sentence.The Court was
hearing the appeal in a decade old matter where the appellant was held guilty by the
Allahabad High Court of Criminal Contempt for intimidating and threatening a Civil Judge
and was directed not to enter the court premises. The Court further added that by virtue of
statutory appellate power under Section 38 of the Advocates Act High Court under Article
226 of the Constitution in appropriate cases on failure of the Bar Council can also take action
after its attention is invited to the misconduct. 7Legal profession being the most important
component of justice delivery system, it must continue to perform its significant role and
regulatory mechanism and should not be seen to be wanting in taking prompt action against
any malpractice.8The Supreme Court observed that there is an urgent need to review the
provisions of the Advocates Act dealing with regulatory mechanism for the legal profession.

ATTORNEY-CLIENT PRIVILEGE

Secrecy and non-disclosure are an integral part of any commercial relationship. The attorney-
client relationship mandates the lawyer under a moral obligation to maintain his client’s
confidentiality. Without a client’s expressed consent no barrister, attorney, pleader or lawyer
is permitted to disclose any communication made to him in the course of employment as the
communication which is made between a lawyer and client is a privileged one. A privilege
communication solely protects the client’s interest and ensures open and truthful
communication between lawyer and client without any fear of disclosure.

There is no statutory definition of privileged conversation in Indian law but  Sec 126 and Sec
129 of the Indian Evidence Act of 1872 lays down the benefit of the privileged
6
AIR 2016 SC 3302.

7
Mechanism For regulating legal Profession, http://blog.scconline.com/post/2016/07/06/mechanism-for-
regulating-the-legal-profession-need-to-be-reviewed-on-urgent-basis/, published on 6 July 2016. Last seen on
23/10/2020.

8
Mahipal Singh Rana Case, http://www.livelaw.in/urgent-need-review-regulatory-mechanism-legal-profession-
sc/, last seen on 23/10/2020.

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communication. While the attorney-client privilege is firmly established as a legal doctrine
that protects confidential communications between lawyers and their clients, its application is
not absolute. The circumstances of the communication, its content and even subsequent
actions relating to the privileged communication must be carefully considered to preserve the
integrity of the privilege.

CHAPTER 2 PRIVILEGED COMMUNICATION UNDER

INDIAN LAW AND ENGLISH LAW

The attorney-client privilege is the oldest privilege recognized by Anglo-American

jurisprudence. In fact, the principles of the testimonial privilege may be traced all the way
back to the Roman Republic, and its use was firmly established in English law as early as the
reign of Elizabeth I in the 16th century. For all of its policy considerations and justifications,
the attorney-client privilege has a very real practical consequence: the attorney may neither
be compelled to nor may he or she voluntarily disclose matters conveyed in confidence to
him or her by the client for the purpose of seeking legal counsel. Likewise, the client may not
be compelled to testify regarding matters communicated to the lawyer for the purpose of
seeking legal counsel. One federal judge opined that “[t]he privilege applies only if (1) the
asserted holder of the privilege is or sought to become a client; (2) the person to whom the
communication was made (a) is a member of the bar of a court, or his subordinate and (b) in
connection with this communication is acting as a lawyer; (3) the communication relates to a
fact of which the attorney was informed (a) by his client (b) without the presence of strangers
(c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or
(iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or
tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. 9 Before the
privilege exists, there must be an attorney-client relationship. An express contract is not
necessary to form an attorney-client relationship; the relationship may be implied from the
conduct of the parties. However, the relationship cannot exist unilaterally in the mind of the
potential client absent a “reasonable belief” that the attorney-client relationship exists.10

9
United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59

10
Privileged communications, https://blog.ipleaders.in/privileged-communications-lawyers-duty-client-
information-confidential/, last seen on 25/10/2020.

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A lawyer is under a moral obligation to respect the confidence reposed in him and not to
disclose communications which have been made to him in professional confidence i.e. in the
course and for the purpose of his employment, by or on behalf of his client, or to State the
contents or conditions of documents with which he has become acquainted in the course of
his professional employment, without consent of his client. If such communications were not
protected, no man would dare to consult a professional adviser, with a view to his defence, or
to the enforcement of his rights, and no man could safely come into a Court, either to obtain
redress, or to defend himself.The rigid enforcement of this rule occasionally operates to the
exclusion of truth; but if any law reformer feels inclined to condemn the rule on this ground,
he will do well to reflect on the eloquent language of the late Knight Bruce, LJ, who
observed, "Truth, like all other good things, may be loved unwisely, - may be pursued too
keenly, - may cost too much. And surely the meanness and the mischief of prying into the
man’s confidential consultation with his legal advisers, the general evil of infusing reverse
and dissimulation, uneasiness, suspicion and fear, into those communication which must take
place, and which, unless in the condition of perfect security, must take place uselessly or
worse, are too great a price to pay for the truth itself."

Bar Council Of India Rules:The Bar Council of India Rules stipulates for all advocates
(legal advisers) certain standards of professional conduct and etiquette. Part VI, Chapter II,
Section II, Rule 17 of BCIR stipulates that "An advocate shall not, directly or indirectly,
commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act" thus
reiterating the spirit of attorney-client privilege, breach of which will also lead to violation of
the Bar Council Rules.11

EXCEPTIONS TO THE ATTORNEY-CLIENT PRIVILEGE

There are some public policy exceptions to the application of the attorney-client privilege.
Some of the most common exceptions to the privilege include:

1. Death of a Client.:The privilege may be breached upon the death of a testator-client

if litigation ensues between the decedent’s heirs, legatees or other parties claiming
under the deceased client.

11
Attorney client privilege in India,
http://www.mondaq.com/india/x/208086/disclosure+electronic+discovery+privilege/AttorneyClient+Privilege+I
n+India, last seen on 25/10/2020.

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 2. Fiduciary Duty.:A corporation’s right to assert the attorney-client privilege is not
absolute. An exception to the privilege has been carved out when the corporation’s
shareholders wish to pierce the corporation’s attorney-client privilege.

3. Crime or Fraud Exception.:If a client seeks advice from an attorney to assist with
the furtherance of a crime or fraud or the post-commission concealment of the crime
or fraud, then the communication is not privileged. If, however, the client has
completed a crime or fraud and then seeks the advice of legal counsel, such
communications are privileged unless the client considers covering up the crime or
fraud.
4. Common Interest Exception.:If two parties are represented by the same attorney in a
single legal matter, neither client may assert the attorney-client privilege against the
other in subsequent litigation if the subsequent litigation pertained to the subject
matter of the previous joint representation.12

MATTERS NOT PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE

Not all components of the attorney-client relationship are protected by or encompassed within
the attorney-client privilege. For example, the existence of the attorney-client relationship or
the length of the relationship are not privileged bits of information. 13In fact, the general
nature of the services performed by the lawyer, including the terms and conditions of the
retention, are generally discoverable.14

The factual circumstances surrounding the communications between an attorney and a client,
such as the date of the communication and the identity of persons copied on correspondence,
are likewise not privileged. Participants in a meeting with an attorney, the length of a
consultation and the documents evidencing same (e.g., calendars, appointment books) are not

12
What the attorney client privilege really means, http://www.sgrlaw.com/ttl-articles/916/, last seen on
3/11/2017.

13
Savoy v. Richard A. Carrier Trucking, Inc., 178 F.R.D. 346, 350 (D. Mass. 1998). 

14
Client Confidentiality privilege, http://www.nishithdesai.com/information/research-and-articles/nda-
hotline/nda-hotline-single-view/article/client-confidentiality-privilege-only-for-lawyers-and-not-for-
accountants.html, last seen on 25/10/2020.

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necessarily protected from compelled disclosure.15As for the fee arrangement between an
attorney and a client, these documents are typically discoverable, except where such
discovery would produce confidential communications with the client.

PROVISIONS

Professional communication16 :No barrister, attorney, pleader or vakil shall at any time be
permitted, unless with his client’s express consent, to disclose any communication made to
him in the course and for the purpose of his employment as such barrister, pleader, attorney
or vakil, by or on behalf of his client, or to state the contents or condition of any document
with which he has become acquainted in the course and for the purpose of his professional
employment, or to disclose any advice given by him to his client in the course and for the
purpose of such employment:

 Provided that nothing in this section shall protect from disclosure -

 (1) Any such communication made in furtherance of any illegal purpose.
 (2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his
employment as such, showing that any crime or fraud has been committed since the
commencement of his employment.
It is immaterial whether the attention of such barrister, 88[pleader], attorney or vakil was or
was not directed to such fact by or on behalf on his client.
Section 127. Section 126 to apply to interpreters etc.
The provision of section 126 shall apply to interpreters, and the clerks or servants of
barristers, pleaders, attorneys and vakils.
Privilege not waived by volunteering evidence : 17If any party to a suit gives evidence
therein at his own instance or otherwise, he shall not be deemed to have consented thereby to
such disclosure as is mentioned in section 126; and if any party to a suit or proceeding calls
any such barrister, 88[ pleader], attorney or vakil as a witness, he shall be deemed to have
consented to such disclosure only if he questions such barrister, attorney or vakil or matters
which, but for such question, he would not be at liberty to disclose.

15
United States v. Keystone Sanitation Co., 885 F. Supp 672,

16
Section 126, The Indian Evidence Act 1872.
17
Section 128, The Indian Evidence Act 1872.

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Confidential communications with legal advisers 18:No one shall be compelled to disclose
to the Court any confidential communication which has take place between him and his legal
professional adviser, unless he offers himself as a witness, in which case he may be complete
to disclose any such communication as may appear to the Court necessary to be known in
order to explain any evidence which he has given, but no others.

English law:In England, the main category of privilege afforded to a communication is legal
professional privilege. Further there are two types of legal professional privilege:19

1. Legal advice priviledge: It protects communication between a lawyer in his professional

capacity and his client provided they are confidential and are for the purpose of seeking or
giving legal advice. This type of legal priviledge is similar to that under Section 126 of the
Indian Evidence Act.

2. Litigation privilege: The second type of legal professional privilege arises only after
litigation or other adversarial proceeding are commenced or contemplated. It is wider than
legal advice privilege and protects all documents produced for sole and dominant purpose of
the litigation, including all communication between
a lawyer and his client
a lawyer and his non professional agents
a lawyer and a third party.
This type of privilege has similar protection under Section 127 and 129 of the Indian
Evidence Act.
The above privileges have an exception similar to that under Indian law but the only
difference is that under the Indian law, any communication made in furtherance of an illegal
purpose is not privileged. Under the English law, the purpose must be criminal and not
merely illegal.

18
Section 129, The Indian Evidence Act 1872.

19
Gauri Kulkarni, Privileged legal communications, http://www.legalserviceindia.com/articles/pc.htm,
last seen on 25/10/2020.

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CHAPTER 3 RATIO OF AN ADVOCATE V B.B HARADARA
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.

PROVISIONS: Punishment of advocates for misconduct.20: (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.(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) The disciplinary committee of a State Bar Council shall fix a
date for the hearing of the case and shall cause a notice thereof to be given to the advocate
concerned and to the Advocate-General of the State.(3) The disciplinary committee of a State
Bar Council after giving the advocate concerned and the Advocate General an opportunity of
being heard, may make any of the following orders, namely:(a) dismiss the complaint or,
where the proceedings were initiated at the instance of the State Bar Council, direct that the
proceedings be filed;(b) reprimand the advocate;(c) suspend the advocate from practice for
such period as it may deem fit;(d) remove the name of the advocate from the State roll of
advocates.(4) Where an advocate is suspended from practice under clause (c) of subsection
(3), he shall, during the period of suspension, be debarred from practising in any court or
before any authority or person in India.(5) Where any notice is issued to the Advocate
General under Sub section (2), the Advocate General may appear before the disciplinary

20
Section 35, The Advocate’s Act.

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committee of the State Bar Council either in person or through any advocate appearing on his
behalf.

21
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 [or the
Attorney General of India or the AdvocateGeneral 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 pass such order [(including an
order varying the punishment awarded by the disciplinary committee of the Bar Council of
India)] thereon as it deems fit:

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.
FACTS22: 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. 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 necessary. 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.

21
Section 38, The Advocate’s Act.

22
AIR 1989 SC 245

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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 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.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
resettlement 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.

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. 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?

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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.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.

HELD: The Judgment of the Court was delivered by THAKKAR, J,disposing of the appeal,
the Court, held that the appellant was not afforded reasonable and fair Opportunity of
showing cause inasmuch as he 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 applicability of the doctrine of benefit of doubt and the need for established the
facts beyond reasonable doubt were not realized. Nor did the Disciplinary Committee
consider the question as to whether the- facts established that the appellant was acting with
bona fides or mala fides whether the appellant was acting with any oblique and 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 quantum of punishment in the light of the aforesaid considerations
and the exact nature of the professional misconduct established against the appellant.

The Court, in view of the fact that “the matter is one of the ethics of the profession which the
law has entrusted to the Bar Council of India” and it is in their opinion, “a case which must

Page 16 of 27
receive due weight” did not consider it appropriate to examine the matter on merits without
first having the opinion of the Bar Council of India. Remanding the matter to the Bar
Council of India the Court directed it 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 at least not established beyond reasonable doubt that the
concerned Advocate was acting with any oblique or dishonest motive or with mala fides.

In exercise of powers under section 35 contained in Chapter V entitled “conduct of

Advocates”, on receipt of a complaint against an Advocate (or suo motu) if the State Bar
Council has ‘reason to believe’ that any Advocate on its role has been guilty of "professional
or other misconduct” Disciplinary proceeding may be initiated against him.Neither section 35
nor any other provision of the Act defines the expression' legal misconduct' or the expression
`misconduct' .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. 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 .

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

Page 17 of 27
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 the 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 specifying the nature and content of the
professional misconduct attributed to the appellant. Nor 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.

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.

In the light of the foregoing discussion the questions arising in the present appeal may now to
be examined.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 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

Page 18 of 27
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
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 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 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

Page 19 of 27
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. 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 vexed 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.

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
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.

Page 20 of 27
 CHAPTER 4 LANDMARK JUDGMENTS ON PRIVILEGED
COMMUNICATION

SUPREME COURT CASES

People ' s Union for Civil Liberties and Anr . vs . Union of India23

It is settled position of law that a journalist or lawyer does not have a sacrosanct right to
withhold information regarding crime under the guise of professional ethics. A lawyer cannot
claim a right over professional communication beyond what is permitted under Section 126
of the Evidence Act. Case pertains to POTA ACT validitiy of section 14.Section 14
conferring power on Investigating Officer to ask for furnishing information useful for or
relevant to purpose of Act. Whether Section 14 violative of Articles 14, 19, 20 (3) and 21?
Held, "no"--Such power quite necessary. Section is 14 valid. Section 14 of the POTA, 2002
confers power on the Investigating Officer to ask for furnishing information that will be
useful for or relevant to the purpose of the Act. Furthermore such information could be asked
only after obtaining a written approval from an officer not below the rank of a Superintendent
of Police. Such power to the Investigating Officers is quite necessary in the detection of

23
AIR 2004 SC 456.

Page 21 of 27
terrorist activities or terrorist.It is settled position of law that a journalist or lawyer does not
have a sacrosanct right to withhold information regarding crime under the guise of
professional ethics. A lawyer cannot claim a right over professional communication beyond
what is permitted under Section 126 of the Evidence Act.

Punjab National Bank Vs. R.L. Vaid and ors24

Respondent Nos. 1 to 3 are facing trial for alleged commission of offences punishable under
Section 120B of the Indian Penal Code, 1860 (in short 'the I.P.C'.) read with Section 5(1)(d)
of the Prevention of Corruption Act, 1947. The case was registered by the Central Bureau of
Investigation (in short 'the CBI'), which is respondent No. 4 in the present appeal. An
application was filed by the accused persons before the Special Judge conducting trial for
summoning eight documents, as were, indicated in the application. The learned Special Judge
directed production thereof overruling the objection to the production thereof. It was the
stand of the CBI and the appellant-Bank that the documents were privileged communication
in terms of Section 124 of the Indian Evidence Act, 1972 .Originally, CBI had resisted the
prayer and subsequently the appellant-Bank raised similar objection. The Special Judge was
of the view that the production of the letters would not cause any injury to public interest and
it would rather facilitate the court to arrive at an appropriate decision. It was noted that in
such type of action proceedings, the court cannot be kept in dark, and in the administration of
justice, the court should have fullest possible access to all relevant materials. The order was
challenged before the Punjab and Haryana High Court the application was dismissed with the
following observations:

The stand of the appellant as well as the CBI is that in any event, the High Court was not
justified in dismissing the application filed by the appellant-Bank merely observing that in
view of the decision in R.K. Jain v. Union of India 25, the appellant has no case. We find that
the High Court has merely referred to the decision in R.K. Jain's case (supra) without even
indicating as to applicability of the said decision It would have been proper for the High
Court to indicate the reasons The impugned order is certainly vague.

24
AIR2004SC4269.
25
1993(65)ELT305(SC).

Page 22 of 27
Superintendent & Remembrancer Of ... vs Satyen Bhowmick And Ors26

Official Secrets Act-Section 14-Scope of-Advocate taking notes on evidence of witnesses in

respect of proceedings held in camera-Court, if could prohibit taking notes-Court if could
compel the advocate to produce his notes for inspection-Advocate if could claim privilege
under section 126 of Evidence Act.

Section 14 of the Official Secrets Act provides that in addition to and without prejudice to
any powers which a Court may possess to order the exclusion of the public from any
proceedings if, in the course of proceedings before a Court against any person for an offence
under this Act, the prosecution makes an application that publication of any evidence to be
given would be prejudicial to the safety of the State. The Court may make an order
prohibiting the publication of evidence to be given or of any statement to be made in the
course of proceedings if it is of opinion that the proceedings would be prejudicial to the
safety of the State. On the allegation that the accused had passed on some military secrets to
the enemy resulting in serious detriment to the safety and security of the country the accused
were charge-sheeted under sections 3, 9 and 10 of the Act.

The defence lawyers were allowed to take notes of the statements of witnesses. When the
Magistrate asked the defence lawyers to produce their note-books for perusal, they claimed
privilege under section 126 of the Evidence Act on the ground that they contained certain
instructions given to them by the accused which amounted to privileged communication and
that for this reason they could not be looked into by the Court. The Magistrate upheld the
objection. Purporting to follow one of its earlier decisions the High Court in a revision filed
by the State held that the Magistrate should have taken legal action against the lawyer for
flouting its order by not producing the note-books on the ground of privilege. In appeal
Supreme Court it was held: The opening words of section 14 "in addition and without
prejudice to any powers which a Court may possess" clearly reveal that the intention of the
legislature was to give only an enabling additional power to the Court regarding holding of
the proceedings in camera. On the view that we have taken, the Magistrate was fully
justified in not compelling the lawyer to surrender his register which undoubtedly
contained a part of the privileged communication and even if the lawyer had taken
down the evidence in extenso for the limited purpose of using it to defend the accused or
cross-examine the witnesses, he could not be prevented from doing so, nor does s. 14

26
1981 AIR 917.

Page 23 of 27
contemplate or envisage such a course of action.That there was absolutely no impropriety
on the power of the Magistrate in not taking action against the defence lawyer for his refusal
to show his register because the lawyer had rightly claimed privilege under s. 126 of the
Evidence Act as the register contained instructions given by the client which being privileged
could not be disclosed to the Court.

ALLHABAD HIGH COURT

K.C. Sonrexa vs State Of Uttar Pradesh And Ors.27

The brief facts of the case are : Sri K. C. Sonrexa who was an employee of the Uttar Pradesh
State was found guilty of misconduct by a Tribunal and his dervices terminated on findings
of tribunal. Sri Sonrexa was aggrieved by this dismissal as according to him it was illegal and
he sent a notice under Section 80 Civil Procedure Code through a counsel Sri H. C. Saksena.
According to the prosecution the said notice contained highly defamatory aspersions against
the members of the Tribunal and so the Public Prosecutor, Lucknow, filed a complaint under
Section 500 Indian Penal Code read with Section 198-B Criminal Procedure Code both
against Sri Sonrexa and Sri H. C. Saksena. The counsel contended that even if for argument's
sake it is accepted that the imputations contained in the notice were made by his client or at
his instructions they were privileged communications to his lawyer and they are not
admissible in evidence on a correct interpretation of Section 126 of the Indian Evidence Act.
His contention is that it was a communication made by the applicant to his lawyer to fulfil the
legal obligation of issuing a notice under Section 80 Civil Procedure Code and, therefore, it
must be deemed to be protected within the meaning of Section 126 of the Indian Evidence
Act. I cannot accept this interpretation. Even in civil disputes where there is a clash of interest
between the client and his lawyer, the communication made by a client to his lawyer ceases
to be a privileged communication and the lawyer can disclose it, for on the principles of
Equity and Justice the interests of one party cannot be placed on a higher footing than the
interests of the other party to the dispute. In Sarkar on Evidence (10th Edition) at page 1091
under the commentary on Section 126 Evidence Act the following extract is noted : It has
frequently been held that the rule as to privileged communications of attorneys does not apply

27
AIR 1963 All 33.

Page 24 of 27
when litigation arises between attorney and client and when their communications are
relevant to the issue.28

But this rule of law is for very good reasons restricted in its scope by the two Provisos
contained in the Section itself. No communication made to further any illegal purpose is
protected. While an accused has been given the right to defend himself and any
communication made by him for this purpose is protected he cannot be permitted to defend
himself by committing a fresh breach of law, a further wrong and then plead the protection of
Section 126 for the furtherance of this illegal purpose. If he does so the lips of the lawyer
cannot be sealed. Section 126 provides shield to the accused but does not arm him was a
dangerous weapon to be used from behind this shield. It cannot be the duty of a lawyer to
advise his client how to commit a breach of the law or evade the law or commit a fresh crime
in order to defend him against the charge of a crime which he has already committed. Such
conduct would be fully covered by the first proviso as it would be clearly in furtherance of an
illegal purpose. I am, therefore, of opinion that Section 126 of the Indian Evidence Act does
not help the applicant and the prosecution against him cannot be stopped at this stage.

CHAPTER 5 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

28
Naive v. Baird, 12 Ind. 318

Page 25 of 27
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 disservice 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
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.

BIBLIOGRAPHY

 http://legalperspectives.blogspot.in/2011/01/client-confidentiality-and-lawyer.html.
 http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-
hotline-single-view/article/client-confidentiality-privilege-only-for-lawyers-and-not-
for-accountants.html.
 http://www.sclt.in/content/advocate-vs-bb-haradara-ors?qt-cases=2#qt-cases.
 http://india.lawi.asia/an-advocate-v-b-b-haradara-and-ors/
 https://www.legalindia.com/judgments/an-advocate-vs-b-b-haradara-ors-on-29-
september-1988.
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http://www.legalservicesindia.com/article/article/professional-misconduct-of-lawyers-
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http://blog.scconline.com/post/2016/07/06/mechanism-for-regulating-the-legal-
profession-need-to-be-reviewed-on-urgent-basis/, published on 6 July 2016. Last seen
on 23/10/2020.
 Attorney client privilege in India,
http://www.mondaq.com/india/x/208086/disclosure+electronic+discovery+privilege/
AttorneyClient+Privilege+In+India, last seen on 25/10/2020.

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 What the attorney client privilege really means, http://www.sgrlaw.com/ttl-
articles/916/, last seen on 23/10/2020.
 Gauri Kulkarni, Privileged legal communications,
http://www.legalserviceindia.com/articles/pc.htm, last seen on 25/10/2020.
 Privileged communications, https://blog.ipleaders.in/privileged-communications-
lawyers-duty-client-information-confidential/, last seen on 25/10/2020
 Client Confidentiality privilege, http://www.nishithdesai.com/information/research-
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