VIVA QUESTIONS AND ANSWERS FOR PROFESSIONAL ETHICS AND

ACCOUNTANCY FOR LAWYERS

1. CASE LAW ON PROFESSIONAL MISCONDUCT- SHAMBHU RAM YADAV Vs.

HANUMAN DAS KHATRY (JUDGEMENT BY J. YK. SABHARWAL)

FACTS:-

 Complaint filed by the appellant against the advocate Mr. Hanuman Das Khatry
(respondent) before the Bar Council of Rajasthan.
 Allegation- The advocate wrote a letter to his client that the Judge who had to decide
his case accepts bribe and to give Rs. 10,000/- for a favourable decision.
 Contentions of respondent-advocate- No bribe was actually given to the Judge, the
Judge was himself terminated on charges of taking illegal gratification. Hence there
was no serious misconduct by the advocate.
 Appeal made to the BCI under Sec 37 of the Advocates Act 1961. BCI directed his
name to be struck off and he be permanently debarred from practicing.
 Advocate filed a review under Sec 44 of Advocates Act and the BCI accepts the
review application. (Sec 44 states that the disciplinary committee of the BCI may
review its order within 60 days from the date of passing the order).
 Appeal made to Supreme Court under Sec 38 of Advocates Act.

ISSUE: Whether the disciplinary committee, in exercise of its review powers, could alter the
initial order of suspension?

DECISION: 1. The duties of an Advocate are prescribed under Part VI of the BCI Rules and
one of the foremost duty is to conduct the functions and plead or act in a dignifies manner, to
respect & maintain dignity of the court and uphold client’s interests.

2. The legal profession is based on honesty and integrity of an Advocate and the Advocates
Act 1961 has cast a responsibility on the authorities to take action wherever it seems that the
credibility & reputation of the profession is eroded by certain persons or members of the Bar
Associations.

3. The advocate had spent more than 50 years in legal profession and he is expected to have
high moral standards instead of dishonouring the profession. The Supreme Court held that the
earlier decision of the BCI was based on cogent evidences and relevant considerations.

4. Also, in review petition the BCI cannot take a different view upon the same facts as done
by it in this case. Hence, original order of the BCI was restored by the Apex Court and he
was permanently restrained from practicing.
2. CASE LAW – N.G. DASTANE Vs. SHRIKANT S. SHIVDE

In N.G. Dastane v. Shrikant S. Shind, (AIR 2001 SC 2028) where the advocateS of one of
the parties (SHRIKANT SHIVDE AND KULKARNI) were asking for continuous
adjournments to the immense inconvenience of the opposite party, it was held by the
Supreme Court that seeking adjournments for postponing the examination of witnesses who
were present without making other arrangements for examining such witnesses is a
dereliction of the duty that an advocate owed to the Court, amounting to misconduct.

3. CASE LAW – BAR COUNCIL OF MAHARASHTRA Vs. M.V. DABOLKAR

Ultimately, as it has been upheld and reiterated that “misconduct” would cover any activity or
conduct which his professional brethren of good repute and competency would reasonably
regard as disgraceful or dishonourable. It may be noted that the scope of “misconduct” is not
restricted by technical interpretations of rules of conduct. This was proven conclusively in the
case of Bar Council of Maharashtra v. M.V. Dahbolkar (AIR 1976 SC242). The facts
under consideration involved advocates positioning themselves at the entrance to the
Magistrate’s courts and rushing towards potential litigants, often leading to an ugly
scrimmage to snatch briefs and undercutting of fees. The Disciplinary Committee of the state
Bar Council found such behavior to amount to professional misconduct, but on appeal to the
Bar Council of India, it was the Bar Council of India absolved them of all charges of
professional misconduct on the ground that the conduct did not contravene Rule 36 of the
Standards of Professional Conduct and Etiquette as the rule required solicitation of work
from a particular person with respect to a particular case, and this case did not meet all the
necessary criteria, and such method of solicitation could not amount to misconduct. This
approach of the Bar council of India was heavily reprimanded by the Supreme Court. It was
held that restrictive interpretation of the relevant rule by splitting up the text does not imply
that the conduct of the advocates was warranted or justified. The standard of conduct of
advocates flows from the broad cannons of ethics and high tome of behavior. It was held that
“professional ethics cannot be contained in a Bar Council rule nor in traditional cant in the
books but in new canons of conscience which will command the member of the calling of
justice to obey rules or morality and utility.” Misconduct of advocates should thus be
understood in a context-specific, dynamic sense, which captures the role of the advocate in
the society at large.

4. CASE LAW- NORATANMAN COURASIA Vs. M.R.MURALI

In another case, Noratanman Courasia v. M. R. Murali,[2] the Supreme Court explored the
amplitude and extent of the words “professional misconduct” in Section 35 of the Advocates
Act. The facts of the case involved an advocate (appearing as a litigant in the capacity of the
respondent, and not an advocate in a rent control proceeding) assaulted and kicked the
complainant and asked him to refrain from proceeding with the case. The main issue in this
case was whether the act of the advocate amounted to misconduct, the action against which
could be initiated in the Bar Council, even though he was not acting in the capacity of an
advocate. It was upheld by the Supreme Court that a lawyer is obliged to observe the norms
of behavior expected of him, which make him worthy of the confidence of the community in
him as an officer of the Court. Therefore, inspite of the fact that he was not acting in his
capacity as an advocate, his behavior was unfit for an advocate, and the Bar Council was
justified in proceeding with the disciplinary proceedings against him.

5. CASE LAW- BABLAL Vs. SUBASH JAIN

Advocate actively engaged in carrying other business

Case: Babu Lal Jain v. Subhash Jain
Facts: The complainant was an advocate. He alleged that the respondent advocate was a
practising lawyer as well as was working as an editor, printer, and publisher of a weekly
called “Aaj Ki Janata”.
Held: Rule 47 of BCI rules prohibits an advocate to be engaged personally in any business.
The respondent advocate was found to have been actively engaged in carrying on the
business and his conduct was take by the disciplinary committee as profession misconduct.

6. BAR COUNCIL OF INDIA

Bar Council of India (BCI) is a statutory body established under the section 4 of Advocates
Act 1961 that regulates the legal practice and legal education in India. Its members are
elected from amongst the lawyers in India and as such represents the Indian bar. It prescribes
standards of professional conduct, etiquettes and exercises disciplinary jurisdiction over the
bar. It also sets standards for legal education and grants recognition to universities whose
degree in law will serve as a qualification for students to enroll themselves as advocates upon
graduation.
Section 7 of the Advocates Act, 1961 lays down the Bar Council's regulatory and
representative mandate. The functions of the Bar Council are to:[3]

1. Lay down standards of professional conduct and etiquette for advocates.

2. Lay down procedure to be followed by disciplinary committees
3. Safeguard the rights, privileges and interests of advocates
4. Promote and support law reform
5. Deal with and dispose of any matter which may be referred by a State Bar Council
6. Promote legal education and lay down standards of legal education.
7. Determine universities whose degree in law shall be a qualification for enrollment as
an advocate.
8. Conduct seminars on legal topics by eminent jurists and publish journals and papers
of legal interest.
9. Organise and provide legal aid to the poor.
10. Recognise foreign qualifications in law obtained outside India for admission as an
advocate.
11. Manage and invest funds of the Bar Council.
12. Provide for the election of its members who shall run the Bar Councils.
 7. RIGHTS OF ADVOCATES
 Right to Freedom of Speech and Expression
 Right to practice and audience
 Right for Welfare Fund
 Right of Fee
 Right to practice the profession
 Right to enter any court
 Right against arrest

8. DUTIES OF THE ADVOCATES

Advocate's Duty to the Court
Advocate's Duty to the Client
Advocate's Duty to the Opponent Advocate.
Advocate's Duty to the Cross Examination
Advocate's Duty to the Colleagues

9. PRIVILEGES OF ADVOCATES

1. Privilege of exemption from arrest :An advocate, while going to the court or during the
proceedings before a Court and while returning from the court, is exempted from civil arrest.
However, this does not apply to arrest for contempt of court or arrests for criminal offenses.
2) Vakalatnama in favor of Advocate :When the client signs Vakalatnama in favor of an
Advocate, such an Advocate gets the exclusive privilege to represent his client in that
particular matter. No other advocate can appear in that case without his consent for the reason
of express prohibition.
3) An Advocate has a liability of Negligence :No action can be taken against the advocate
if he does any negligence.
4) An advocate can review Parliamentary Bills for remuneration:Advocates have the
privilege to review parliamentary bills and suggest amendments too.

10. SEVEN LAMPS OF ADVOCACY

1. Honesty: Honesty is the most important quality that an advocate should possess. His
thoughts words and deeds should have sincere corelation to each other with genuineness. An
Advocate should be dependable reliable to everyone who seeks his advise and services. The
uprightness, integrity and honesty of the Advocate will increase his reputations and respect in
the society.

2. Courage: It is the duty of an Advocate to fearlessly uphold the interest of his client by all
fair means without fear of any unpleasant consequences to himself or any other person. It is
the knowledge and the skill of the Advocate that gives him the necessary courage and
confidence to present the case fearlessly and to uphold the interest of the client. The
knowledge and the skill can be acquired and developed by mastery of facts, mastery of laws,
mastery in drafting and presentations of convincing arguments.

3. Industry: It means hard work. Hard works is absolutely necessary for an Advocate. His
knowledge of law should be up to date. He shall never be ignorant of the current law in force.
He shall get acquainted with the latest law by systematic study. If one ignores the law, the
law will also ignore him. That is why it is said that “law is the jealous mistress”.
4. Wit: Judges and lawyers have to deal with a variety of serious and important matters
affecting life and liberty of the people. So constant clash between them is common. Anxiety
for a favourable verdict on the part of the lawyers; and perpetual worry for the pursuit of the
truth on the part of the judges generate strain and tension. Occasional wit and humour,
provoking a smile or laughter will help them to ease the tension, and refresh themselves to
sharpen their brain for the effective discharges of the duties.

5.Eloquence: Eloquence means the fluency, force and style of using the language. Strong
vocabulary is one of the powerful weapon which an Advocate should posses. Words are his
keys of thoughts. Strong vocabulary gives him assurance, build his self confidence and build
his personality. Words must be employed with eloquence. The art of persuasive and
impressive speaking will give the desired result in his favour.

6.Judgement : It means the ability to come to a sensible conclusion and make wise decisions
at the relevant time in the proper way. It is on the basis of these conclusions he should
employ the necessary facts and the techniques in the case which he is engaged. This quality is
necessary from the beginning of filing the case till its final disposal. An Advocate must
always anticipate all the possible moves of the other side and must develop the necessary
presence of mind , alertness and tact to cope with any awkward situation of difficulty that
may arise in the case.

7.Fellowship: In legal profession, one Advocate fights with another Advocate for justice
before the learned judge. There may be controversies and contradictions in their contention
relating to the case, but that shall never affect the fellowship. The Advocates should refer the
opposite party‟s Advocate as “Learned Friend” and the judge should be referred as
“Learned Judge”. In order to maintain the fellowship, the Bar Council of India has laid down
certain rules to be observed as the duty to colleagues.

11. DISCIPLINARY COMMITTEE

S.9 of the Advocates Act empowers the state Bar Councils to constitute one or more
Disciplinary Committees. Each Disciplinary Committee shall consists of 3 members. Two
shall be selected from the members of the Bar Council and one shall be selected from the
Advocates who are having more than 10 years of standing in profession. Among the three
members the senior most in the profession shall act as the chairman of the committee.

Powers : S.42 of the Advocates Act deals with the power of Disciplinary committee. It
provides that the Disciplinary Committee of the State Bar Council shall have the same
powers same like the civil court under the C.P.C. in respect of the following matters.

1. Summoning and enforcing the attendance of any person and examining him on oath.
2. Requiring discovery and production of any documents.
3. Receiving evidence on affidavit.
4. Requiring any public record or copies of any record from any court or office.
5. Issuing commissions for the examinations of witness or documents.

12. ADVOCATES DUTY TOWARDS COURT

1. An Advocate shall show the due respect to the court and shall never act in any manner to
undermine the confidence in the judiciary.
2. He shall not exert or attempt to exert any personal influence on the decision of the court,
nor shall give any impression that he possesses personal influence with the judge before
whom he normally practices.
3. He shall be always punctual in attending courts in the prescribed dress.
4. He shall be fair and frank in the court proceedings.
5. He shall not include any fact which he knows to be false in the pleadings, petitions or
affidavits.
6. He shall not ask for any adjournment of a case without genuine reasons.
7. He shall not communicate privately with the judges to influence them relating to any
pending case.
8. He shall not speak ill of judges or use abusive remarks about them. But, if the judge
behaves improperly, it is not only the right but also his duty to report it to the proper
authorities.
9. He shall not interrupt when the counsel for the otherside or the judge is speaking.
10. He shall appear in the court in the prescribed dress and his appearances shall always be
presentable. He shall not wear bands or gown in the public places.
11. He shall not practice before a judge if he is related to him.
12. He shall not act or plead in any matter in which he is pecuniarily(monetary) interested.
13. He shall not appear for any organization, institution, society or corporation if he is the
member of the executive committee of such organization, institution, society or corporation.

13. ADVOCATES DUTY TOWARDS CLIENT

1. An Advocate is bound to accept a case in the courts or tribunals where he is normally
practicing.
2. He shall not withdraw from a case which he has already accepted without sufficient
reasons. He shall not withdraw from the case merely because his fees has not been paid in
full. He shall withdraw from the case only after giving a reasonable notice to his client. After
his withdrawal he must refund such part of the fees which is in excess in his hand.
3. He shall not accept a case in which he has reason to believe that he will be called as
witness. If he already engaged in a case in which he is called as a witness then he should
return the case. But, if his retirement will cause irreparable loss to the client then he can
continue to appear as a lawyer.
4. He must make full and frank disclosures to his client relating to his connection with the
parties and his interest in the controversy which may likely to affect his clients interest.
5. He should fearlessly uphold the interest of his client by fair and honourable means without
the fear of any pleasant consequences to himself or to any other person. He shall not refuse to
appear for an accused person merely because in his personal opinion the accused has
committed the offence.
6. An Advocate appearing as a prosecution counsel shall be fair and shall not conduct the
prosecution with hostility to the accused to
secure conviction. He should not obstruct the defence counsel in placing the relevant material
evidence to prove the innocence of the accused.
7. He shall not disclose any matter communicated to him in his professional capacity to any
other person without the consent of his client.
8. He shall not be a party to fomenting of litigation.
9. He should act at the instructions of his client and not at the instruction of any other person.
10. He shall not stipulate a fee depending on the success of the case or agree to share the
proceeds of the litigation.
11. He shall not buy or agree to share the interest of the litigation.
12. He shall not directly or indirectly bid or purchase in his own name or in any other name
any property sold in execution of a decree in which he was engaged as a lawyer. 13. He shall
not adjust fees payable to him by his client against his own personal liability to the client.
14. He shall not do anything whereby he abuses or takes advantage of the confidence reposed
in him by the client.
15. He should keep regular accounts of the clients money entrusted to him. The account
should show the particulars of the amount received from the client and the expenses incurred
for him.
16. He should maintain separate accounts for the amount received for the fees and for the
expenses. The amount received for the expenses shall not be converted for fees without the
consent of the client.
17. Where any amount received on behalf of the client (either from the court or from any
other person) it should be intimated to the client as early as possible.
18. After the proceedings are over, he shall take the settled fee from the client‟s money in his
hand and the balance, if any should be returned to the client.
19. If the Advocates fee is left unsettled, he shall take a reasonable fee from the client‟s
money in his hand, after the proceedings are over.
20. A copy of the clients account shall be furnished to him on demand.
21. He shall not convert the client‟s money in his hand as loan given to him by the client.
22. He shall not lend money to his client for the purpose of any legal proceeding in which he
is engaged as the lawyer. But, any amount given to his client in an unanticipated emergency
shall not be treated as beach of this duty.
23. An Advocate who has advised or prepared the pleadings or appeared for a party in any
suit or appeal shall not act, appear or plead for the opposite party.

14. DUTY TOWARDS PROFESSION

1. An Advocate shall not speak ill of the profession. He should conduct himself in such a way
to enhance respect, sympathy and good feeling between the members of the profession and
strive to maintain the honour and dignity of the profession.
2. He shall not discuss in the newspapers any pending case or appeal.
3. He shall not in any way solicit cases by advertisement or otherwise.
4. He shall not act or plead in his professional capacity before any officer of the state not
exercising judicial or quasi-judicial powers.
5. He shall not appoint intermediaries for procuring cases and divide the fees between them
or pay commission to them for such work.
6. He shall not entertain or show any undue hospitality to any particular judge.
7. He shall not place himself in the situation which may be unbecoming of a member of the
bar.
8. He shall not oppose the desire of his client for additional professional help or assistance
from other lawyers also.
9. He must appear in robes in the court proceedings. He shall not wear robes or gown in
public places except on ceremonial occasion.
10. He shall not act as a managing Director or a secretary of a company without the leave of
the Bar Council.
11. He shall not work as a full time salaried employee.
12. He shall not do any other business. An advocate who inherits any family business may
continue it, but he should not personally participate in the management of the business.

PREPARED BY :
HRISHIKESH DIXIT
(LL.B. FOURTH SEM)