“Lawyers have their duties as citizens, but they also have special duties as lawyers.

Their
obligations go far deeper than earning a living as specialists in corporation or tax law. They
have a continuing responsibility to uphold the fundamental principles of justice from which
the law cannot depart.”- Robert Kennedy
In this professional world, every professional needs to follow the “Professional Ethics” to
maintain the harmony and standards of the profession.Advocates are the one who takes their
clients to the journey of justice, they use their knowledge and skills to seek justice the court
of law. So, it is the duty of every individual to fulfill its duties and seek justice for the
clients.
The Lawyers' profession is considered to be one of the noblest profession. Lawyers have to
play a pivotal role in the administration of justice as only with their sincere and purposeful
effort and assistance the Courts could administer justice properly. They owe onerous
responsibility and duty towards Courts and they are considered as the officers of the Courts.
Their first responsibility is towards their clients and then to the courts.
An advocate’s conduct should reflect their privileged position in society, which derives from
the nobility of this profession. In a nutshell, if you are an advocate, your service to the
common man should be compassionate, moral, and lawful.
No member of the legal profession ever hesitates to condemn injustice and tyranny. These
qualities which he possesses by education and by training make him the leader of society as
a matter of course.1(Krishnaswami Aiyer, Professional Conduct and Advocacy, Oxford
University Press, 1945)
Practitioners of law are bound to follow some codes of conduct. That is why, the law not
only laws the laws for the entire country, but also a code of conduct for the advocates.Apart
from being professionals, advocates are also viewed as officers of the court and thus they
play an important role in the administration of justice.
Chapter V of the Advocates Act, 1961 lays down the Conduct of Advocates. As officers of
the Court as well as agents of the client, it is the utmost duty of the advocate to adhere to a
standard of conduct which is befitting of his status and responsibility2(Preeta, Misconduct
of an advocate and Indian law in light of Supreme Court judgments, October 2, 2011,
https://blog.ipleaders.in/misconduct-of-an-advocate-and-indian-law-in-light-of-supreme-
court-judgements/)
It may be noted that under the Advocates Act, that the concerned State Bar Council can take
disciplinary action against any advocate who is found to be guilty of professional or other
misconduct. The use of the word ‘other’ clearly indicates that misconduct does not merely
refer to professional misconduct – it could also refer to any misconduct, whether in the
professional capacity or personal capacity or otherwise.3(Ibid at 2)

1
The sole purpose is to avoid unnecessary exploitation of power and privilege by the
advocates in the court as well as against clients. Here Mahatma Gandhi’s visions, can give a
broader perspective-
“I had learnt the true practice of law. I had learnt to find out the better side of human nature
and to enter man’s hearts. I realized that the true function of a lawyer was to unite parties
riven as under. The lesson was so deeply burnt into me that a large part of my time during
the 20 years of my practice as a lawyer was occupied in bringing about private compromises
of hundreds of cases. I lost nothing thereby – Not even money, and certainly not my soul.”
4(M.K. Gandhi, My Experiments with Truth: An Autobiography, Beacon Press, reprint
1993)

The legal profession in India is governed by the Advocates Act, 1961, which outlines the
rights, privileges, and responsibilities of advocates. Advocacy is a noble profession. It
cannot be compared with any other profession like trade, business etc. because it is a part
and parcel of judiciary and administration of justice. Bar and bench are two eyes of the
‘Justice'. There are judicial ethics and etiquette for judges. There are professional ethics and
etiquette for advocates. Every advocate should follow them in his profession. An advocate is
also a key person in conducting a proceeding before the court. While conducting a
proceeding the advocate should function intelligently. There are several functions entrusted
to the advocate. There are five most important functions. They are:
• Briefing
• Counseling
• Pleadings, drafting and Conveyancing
• Examination, Cross – examination, chief examination of witness and
• Arguments.
Beside them, an advocate has to do several functions which are necessary in conducting
proceedings. While carrying out these functions an advocate must act prudently, legally and
cautiously. There are several ethics and etiquette controlling the conduct of the advocates.
These ethics and etiquette impose certain duties upon the advocates.

Advocates have the dual responsibility of upholding the interests of the client fearlessly
while conducting themselves as officers of the court. Accordingly, they are expected to
adhere to the highest standards of probity and honour.
The relationship between an Advocate and a client is highly fiduciary, and it is the duty of
an advocate fearlessly to uphold the interests of the client, and give him justice, established
a good relationship with the client with an object the client can easily share any matter with
an advocate.

2
How is the professional conduct of individuals in the legal field decided? Well, the
professional code expected from law practitioners arises out of the duties they are expected
to perform to their clients, their opponents, and the court.

Introduction to the Advocates Act and Bar Council Rules:

The Advocates Act is a comprehensive legislation that regulates the legal profession in
India. It defines the term “advocate” and lays down the qualifications, rights, and duties of
an advocate. The Act provides for the creation of the Bar Council of India (BCI), which is
the regulatory body for advocates in India, as well as the state bar councils.

The Act(Advocates Act, 1961) empowers the bar councils to prescribe the standards of
professional conduct and etiquette for advocates and also empowers them to take
disciplinary action against advocates for professional misconduct. Bar Council of India
Rules, also known as the “Standards of Professional Conduct and Etiquette” lays down the
specific duties and responsibilities of advocates.
Any violation of the ethical duties and professional responsibilities by an advocate may
result in disciplinary proceedings before the Bar Council. The Bar Council of India has the
authority to take disciplinary action against advocates who are found guilty of professional
misconduct. The disciplinary proceedings may include inquiries, hearings, and imposition of
penalties, including suspension or cancellation of the advocate’s license to practice law.

Advocates are also subject to the jurisdiction of the courts, and the courts have the authority
to take action against advocates for any act of misconduct or breach of duties during court
proceedings. The courts may impose fines, reprimand, or take other appropriate actions
against advocates who violate their ethical duties or professional responsibilities.The Bar
Council of India has given the principles on the professional standards that an advocate
must maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules.
These rules are placed there under section 49(1)(c) of the Advocates Act, 1961.

Duties of an Advocate towards a client are as follows 8(Chapter II, Standards of

Professional Conduct and Etiquette, Section II, Bar council of India Rule) -
1. Bound to accept briefs:(Rule 1, ibid at 8)
An advocate should accept any brief in the courts or tribunals or before any other authority
in or before which he professes to practice at a fee consistent with his standing at the Bar
and the nature of the case special circumstances may justify his refusal to accept a particular
brief.
2. Not withdraw from service:If he withdraws from a case, the advocate must refund any
part of the fee that was not earned. However, once an advocate has accepted a case, he must
3
under no circumstances withdraw from the same without sufficient cause and without giving
reasonable and sufficient notice to the client.
3. Not appear in matters where he himself is a witness:
An advocate should not accept a brief or appear in a case in which he himself is a witness. If
he has a reason to believe that in due course of events, he will be a witness, then he should
not continue to appear for the client. He should retire from the case without jeopardizing his
client’s interests.
4. Full and frank disclosure to client:
An advocate should, at the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosure to his client relating to his connection with
the parties and any interest in or about the controversy as are likely to affect his client's
judgement in either engaging him or continuing the engagement.
5. Uphold interest of the client:
It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair
and honourable means. An advocate shall do so without regard to any unpleasant
consequences to himself or any other. He shall defend a person accused of a crime
regardless of his personal opinion as to the guilt of the accused. An advocate should always
remember that his loyalty is to the law, which requires that no man should be punished
without adequate evidence.
6. Not suppress material or evidence:
An advocate appearing for the prosecution of a criminal trial should conduct the
proceedings in a manner that it does not lead to conviction of the innocent. An advocate
shall by no means suppress any material or evidence, which shall prove the innocence of the
accused.
7. Not disclose the communications between client and himself:
An advocate should not by any means, directly or indirectly, disclose the communications
made by his client to him. He also shall not disclose the advice given by him in the
proceedings. However, he is liable to disclose if it violates Section 126 of the Indian
Evidence Act, 1872.
8. An advocate should not be a party to stir up or instigate litigation:
9. An advocate should not act on the instructions of any person other than his client or the
client's authorised agent.
10. Not charge depending on success of matters:
An advocate should not charge for his services depending on the success of the matter
undertaken. He also shall not charge for his services as a percentage of the amount or
property received after the success of the matter.
11. Not receive interest in actionable claim:An advocate should not trade or agree to receive
any share or interest in any actionable claim. Nothing in this rule shall apply to stock, shares
4
and debentures of government securities, or to any instruments, which are, for the time
being, by law or custom, negotiable or to any mercantile document of title to goods.
12. Not bid or purchase property arising of legal proceeding:
An advocate should not by any means bid for, or purchase, either in his own name or in any
other name, for his own benefit or for the benefit of any other person, any property sold in
any legal proceeding in which he was in any way professionally engaged. However, it does
not prevent an advocate from bidding for or purchasing for his client any property on behalf
of the client provided the Advocate is expressly authorised in writing in this behalf.
13. Not bid or transfer property arising of legal proceeding:
An advocate should not by any means bid in court auction or acquire by way of sale, gift,
exchange or any other mode of transfer (either in his own name or in any other name for his
own benefit or for the benefit of any other person), any property which is the subject matter
of any suit, appeal or other proceedings in which he is in any way professionally engaged.
14. Not adjust fees against personal liability:
An advocate should not adjust fee payable to him by his client against his own personal
liability to the client, which does not arise in the course of his employment as an advocate.
15. An advocate should not misuse or takes advantage of the confidence reposed in him by
his client.
16. Keep proper accounts:
An advocate should always keep accounts of the clients' money entrusted to him. The
accounts should show the amounts received from the client or on his behalf. The account
should show along with the expenses incurred for him and the deductions made on account
of fees with respective dates and all other necessary particulars.
17. Divert money from accounts:
An advocate should mention in his accounts whether any monies received by him from the
client are on account of fees or expenses during the course of any proceeding or opinion. He
shall not divert any part of the amounts received for expenses as fees without written
instruction from the client.
18. Intimate the client on amounts:
Where any amount is received or given to him on behalf of his client, the advocate must
without any delay intimate the client of the fact of such receipt.
19. Adjust fees after termination of proceedings:
An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to
him from the account of the client. The balance in the account can be the amount paid by the
client or an amount that has come in that proceeding. Any amount left after the deduction of
the fees and expenses from the account must be returned to the client.

5
20. Provide copy of accounts: An advocate must provide the client with the copy of the
client's account maintained by him on demand, provided that the necessary copying charge
is paid.
21. An advocate shall not enter into arrangements whereby funds in his hands are converted
into loans.
22. Not lend money to his client:
An advocate shall not lend money to his client for the purpose of any action or legal
proceedings in which he is engaged by such client. An advocate cannot be held guilty for a
breach of this rule, if in the course of a pending suit or proceeding, and without any
arrangement with the client in respect of the same, the advocate feels compelled by reason
of the rule of the Court to make a payment to the Court on account of the client for the
progress of the suit or proceeding.
23. Not appear for opposite parties:
An advocate who has advised a party in connection with the institution of a suit, appeal or
other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for
the opposite party in the same matter.

THE BODY THAT IS AUTHORISED TO PUNISH MISCONDUCTS BY ADVOCATES

STATE BAR COUNCIL AND ITS DISCIPLINARY COMMITTEE

The punishment to advocates for misconduct has been laid down under Section 35 of the
Act18(Section35, Advocates Act, 1961) which provides for, where on a receipt of
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, shall be referred to the disciplinary
committee for its disposal. 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 or direct the inquiry to be made by any other disciplinary committee
of that State Bar Council19 (Section 35 (1)A , Advocates Act, 1961)

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, namely20 (Section 35 (3) , Advocates Act, 1961)
- a. To dismiss the complaint or, in case where the proceedings were initiated at the
instance of the State Bar Council, the same to direct that the proceedings to be filed.
- b. Reprimand the advocate
- c. Suspend the advocate from practice for such periods as it may deem fit.
- d. Remove the name of the advocate from the State roll of advocate
6
BAR COUNCIL OF INDIA
The Indian Bar Council is the main body and has delegated its power, thus making the State
its physical body to carry on its functions. The articulation of the word "advocate" as
mentioned in the Code of Conduct should incorporate to the degree practicable, any attorney
or group of legal counselors who are a part of a law office and the law firm itself. Firstly, an
advocate should, constantly, comport himself in a way befitting the exclusive expectations
of the Indian Bar and of his/her status as an officer of the Court and an advantaged member
from the group, remembering that what might be legal and moral for a man who is not an
individual from the Bar, or for a member from the Bar in his/her non-proficient limit may at
present be uncalled for an advocate. Secondly, without bigotry to the generality of the
preceding duty, an advocate should fearlessly uphold the interests of his/her client.
Moreover, the advocate in his/her conduct should conform to the rules mentioned both in
letter and in spirit. The rules mentioned contain canons of conduct and etiquette adopted as
general guides, yet the specific mention thereof shall not be construed as a denial of the
existence of others equally imperative though not specifically mentioned.22(Bar council of
India Rules (Rules under Section 49(1)(c) of the Advocates Act r/w the proviso thereto)
In the case of Noratanman Courasia v. M. R. Murali23,( [2004] RD-SC 283) the Supreme
Court explored the amplitude and extent of the words “professional misconduct” under
Section 35 of the Advocates Act. The facts of the case were that of an advocate who
assaulted and kicked the complainant and asked him to refrain from proceeding with the
case. The main concern of the 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, in
spite 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.

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.24(Dr Elbe Peter, MDS,
LL.B, Professional misconduct of lawyers in India, June 06, 2014, http://
www.legalservicesindia.com/article/article/professional-misconduct-of-lawyers-in-
india-1665-1.html) 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.25(Ibid see 24) The standard of conduct of
advocates flows from the broad cannons of ethics and high tome of behavior. It was held
7
that “professional ethics cannot be contained in a Bar Council rule or 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 large26 (Bar Council of Maharashtra v. M.V. Dahbolkar, 1976 SCR (2)48)

Few of the Lacunas in the above mentioned Rules on advocate’s duty are explained
with the help of case laws

SHAMBHU RAM YADAV vs. HANUM DAS KHATRY( judgement by J. YK. Sabharwal)
Case Number:- Appeal (civil) 6768 of 2000
Date of Judgement:- 26/07/2001
Bench:- J. K.T. Thomas
J. Y.K. Sabharawal
FACTS
This case is a classic example where a lawyer suggesting his client to bribe the judge to
receive favorable order was suspended permanently from legal profession by the Bar
Council of India. His defense that such judge indeed received bribe and that he was merely
replying to the queries of his client who sought information, did not work in his favour Also,
the defense that he has a clean record as a legal practitioner for past fifty years and this was
his first time, did not soften the Court. On the contrary, the court suspended the accused
lawyer for tainting the legal profession in spite of the wisdom and experiences gained over
the years.
Decided on July 26,2001
Before Mr. Justice K.T. Thomas & Mr. Justice Y.K. Sabharwal
Judgment delivered by Honorable Mr. Justice Y.K. Sabharwal
Reported: (2001) 6 SCC 1; AIR 2001 SC 2509

1. That the Respondent Advocate while representing the client Mahant Rajgiri in a civil suit
wrote a letter to the client stating that the concerned judge accepts bribe and he has obtained
several favourable orders from him in his favour. He asked him to send Rs. 10,000
so as to influence judge through some gentleman.
2. That the letter also mentioned that if Mahant can personally influence judge then he
would not have to pay the requisite sum.
3. That the complaint was filed on the basis of the content of this letter against the
respondentAdvocate before the Disciplinary Committee of the Rajasthan State Bar Council.
A complaint filed by the appellant against the respondent Advocate before the Bar Council

8
of Rajasthan was referred to the Disciplinary Committee constituted by the State Bar
Council.
4. That the respondent Advocate did not contend the contents of the
letter and hence held guilty of professional misconduct resulted into suspension from
practicing for a period of 2 years with effect from 15th June, 1997.
5. That the appeal filed
before the Bar Council of India where the punishment was further enhanced and his name
was permanently struck off from the roll of advocates.
6. That A review petition was filed against this order Section 44 of the Advocate Act, 1961
which changed his punishment substituting with reprimanding him instead of permanent
disbarred on the contention that the respondent Advocate had no intention to bribe the
judge.
7. Hence, this appeal.

ISSUES
1.Whether the decision against review petition was on the correct grounds?
2. Whether the Disciplinary committee of the Bar Council of India has erred in giving
judgment?
3. Whether the disciplinary committee can modify the earlier order passed by another
disciplinary committee by taking a different view of the same set of facts in exercise of
power of review?
First being, Is the punishment of the expulsion of advocate from the profession is
appropriate or not?
•Second being, Whether the disciplinary committee in exercise of its review power could
alter the initial order of suspension?
•Third being, Is the Advocate guilty of professional misconduct?

ARGUMENTS of the parties:

Appellant:The contention was that the power of review had not been exercised by applying
wellsettled principles governing the exercise of such power. The grounds on which review
was allowed were already taken into consideration by the earlier committee and hence the
original order has been reviewed on non-existent grounds

Appellant

9
• Appellant contended that the earlier order cannot be modified by the disciplinary
committee while deciding a review petition. Therefore, the disciplinary committee has
erred while delivering judgment.
• It is also said that the disciplinary bodies are guardians of the due administration of
justice. They have requisite power and rather a duty while supervising the conduct of
the members of the legal profession to inflict appropriate penalty when members are
found to be guilty of misconduct.
• •The Appellant contended the fact that the disciplinary committee concluding that the
respondent had no intention to bribe the judge is not relevant as there is no record on
hand to suggest it. The appellant also contended that the earlier order which was
passed with consideration of all the the relevant factors and evidences with conclusion
that advocate was not fit to be a professional lawyer as having written such letter is an
utter disregard for professional ethics and any punishment lesser than expulsion from
the profession cannot be imposed.
• •It was contended that the advocates are not merely professionals but they are the
officers of the court. Besides the court they owe a duty of responsibility towards the
society for public good and administration of Justice. The said public interest is
required to be protected by those on whom the power has been entrusted i.e., the
advocates who are the Guardians of public rights and play a key role in retributive and
distributive Justice. State bar council have requisite power and a duty to all members
of legal profession and inflict appropriate penalty on members who are found guilty of
professional misconduct.
• •The appellant contended that the review petition which was filed by the respondent is
without any valid ground, as the penalty for permanent debarment is completely valid;
as it is the duty of the bar council to maintain professional morality and required
standard and failure to comply will invite appropriate action against the perpetrator.
Credibility of council in taking the disciplinary action either in law for any other
vocation depends on how they deal with cases of delinquency involving serious
misconduct which has the capability to Erode the credibility of entire profession and
therefore, the punishment given to the respondent is commensurate with the
Gravity of misconduct.
• •It was contended that the legal profession is not a mere trade or business but a noble
profession which has a heavy responsibility vested on the officers of the Court. It is
evident that committee has given the decision considering all relevant evidences,
information, the age factor of the respondent and the number of years the
respondent has put into profession. It is expected from a person who has put 50 years
in the profession to have a higher standard of morality and irrevocable sense of legal,
ethical, virtual, and moral propriety and therefore the bar council decision of
10
 anything less than expulsion of respondent may lead to a potential disrepute which
may shake the credibility of the bar council in dealing with cases of professional
misconduct and the thrust laid in by the professional advocates in the Council.

Respondent
• Responded referred to disciplinary committee and from the said quotation it is evident
that the advocate was simply given a reply to the query put by his client regarding the
conduct of the judge and as such it remained a fact that it was not an offer on the side
of the advocate to bribe a judge.
• Further, he argued that he has joined the profession since 1951 and has past clean
record in the legal profession.
• •Respondents contented that the letter was written by the Advocate to the client not to
render the client bribe the judge and on a deep investigation it was found that the
Advocate merely wrote the letter as a reply to the question of the client. It was simply
a reply given regarding the the conduct of the judge and was not an offer for a
suggestion to the client to bribe judge.
• Respondents also contended that the Advocate was an old man of 80 years and has
been in a profession for last 50 years and is such a long innings of his professional
career this is the first time Such an allegation of professional misconduct has been put
on him although there was no intention for bribe, there may have been an
irresponsible manner but not professional misconduct.
• •It is also contended that, the committee should keep in mind the age and the past
clean record of the petitioner and the gravity of offence the decision of the committee
to remove the Advocate from the legal profession was not appropriate and cannot be
considered justice as the impugned order is not commensurate to the gravity of
offence the appropriate punishment would be to reprimand the Advocate and warn
him that he should not encourage such activities in life and must be careful while
corresponding to his client.
• •The respondents also contended that the bar council as a duty to ensure that lawyer's
adherence to required standards and take appropriate actions against them. This action
of BAR council of permanent debarment will inflict inappropriate penalty on the
advocate and the requisite power and the duty of supervising of the bar council will be
severely questioned. Which would result in weakened trust in the council's decision
to deal with cases of delinquency and this erosion of readability and reputation
can have serious and catastrophic consequences.
APPLICATION/JUDGEMENT:

11
•In the judgement the council stated that legal profession is not a trade or business but it is a
noble profession in which the professionals have the responsibility to encourage honesty
and strive for justice for the client, if it is legally possible.
•The credibility and the reputation of profession depends on how the professional
display themselves in the public sphere they have the responsibility vested under advocate
act that they must display Supreme honor and discipline. They at no point of time can
disregard the rules and act arbitrary which makes the reputation of profession comes under
the cloud. For this regard any member of the profession.
•With all factors taken into consideration, the Council concluded that portion of the letter
written by the advocate contained considerable misrepresentation and professional
misconduct. Tough, the advocate maybe replying to the question asked by the client he
admitted that he is referred the client to either bribe the judge of 10,000/- Rupees or
convince him in the personal capacity the committee by applying well settled principles and
exercise of the Power vested by advocates act decided to restrict the respondent from
practicing further in the legal profession and the order given by the state bar council
advocate from practice by two years is not in accordance which the misconduct.
•The fact that advocate is in the profession for past 50 years, the bar council expected a very
high standard of morality and unimpeachable ties of legal and ethical propriety, which the
Advocate failed to display.
•The bar council of India must be more sensitive to the potential disrepute an account of
action of the Advocate as it may shake the credibility of the profession and thereby
put at stake other members of the bar therefore under these conditions the bar is having no
hesitation in setting aside impugned order and debarring advocate from practicing further.

CRITICAL ANALYSIS
•Advocates Institute one of the privileged classes and enjoys exclusive rights for application
of law and Guardian of public rights. The advocates as officers of the court and
representatives of the client must adhere to a very high standard of conduct which is
reasonable in status and responsibility. It is worthy to note that the state bar council and
Bar Council of India can take appropriate disciplinary action against the advocates who
fail to comply with the professional ethics. Their misconduct is not only within their
personal and professional capacity but it endangers the professional capacity of the entire
legal fraternity.
• To consider the scope of misconduct all advocate always must consider themselves
in a gentlemanly fashion, the responsibility towards the client as well as the court
and other stakeholders must be kept in mind. Misconduct is a wide expression and may or
may not involve moral turpitude, according to black's law dictionary misconduct is

12
 defined as "any transgression of some established and definite rule of action, a Forbidden
act, an unlawful or improper behavior, willful in character, a dereliction of Duty".
• •In different cases the apex court opined that the word 'misconduct' has no precise
meaning and it is open to the subject matter and context where it is used. In the context of
an advocate any conduct that can render be advocate unfit for his profession or poses
imminent danger to administration of Justice can be considered as misconduct, for which
disciplinary action may be initiated by any bar council. The Advocate as an officer of the
court is responsible to render services which are of absolute performance and optimum
quality; lapses in services involving incomplete and inaccurate filing and wrong
pleading before the court of law can be considered Grave and professional
misconduct. Other misconduct may include - personal check, verification, non-payment of
court and process fee, failure to remove objection, failure of professional admission,
disservice to the litigants, and avoiding Court ethics leading to delay in disposal of matters
and reduced efficiency of judicial system.
• • Advocates are also required to uphold the dignity and maintain respectful attitude
towards the court as the bar and bench form a dynamic partnership assisted by a noble aim
for great social and moral responsibility to the public and ensure proper administration of
Justice. The advocates are the key who binds the mutual relationship ties between the
judiciary and the public and maintain ordinal relations between the two.
• •The Advocate at no point of time should disrupt the decorum of the court or overstep the
limit of propriety. The standard of conduct of advocates is a broad Avenue and display a
variety of Canon of ethics and high tone of behavior. It can be held that professional ethics
cannot be contained in bar council rule or any other rule book as different avenues require
different professional behavior and different actions of conscience which will command
the member of calling of justice to obey rules of morality and utility. Therefore, the
misconduct of advocate can be considered a contact-specific dynamic and a broad
Avenged topic which captures the role of advocate in society at large.
CONCLUSION
In the conclusion, the punishment of expulsion of advocate from profession is
completely appropriate and within the terms of the professional misconduct shown by
the advocate. The disciplinary committee exercise of review power could not alter the
initial order of suspension the decision could not be changed which was taken under
complete consideration of all evidences as the set of fact and matter of evidences is the
same. The Advocate is guilty of professional misconduct as writing the letter containing
compromising information is not within the Ambit of professional ethics of an advocate.

13
Misappropriation of money: Harish Chandra Tiwari Vs. Baiju, AIR 2002 SUPREME
COURT 548,
CASE NO.:
Appeal (civil) 200 of 2000
PETITIONER:
HARISH CHANDRA TIWARI
RESPONDENT:
BAIJU
DATE OF JUDGMENT: 08/01/2002

Bench: K.T. Thomas, S.N. Phukan

Brief Essence
In this case the Hon’ble Supreme Court of India addressed the issue of professional
misconduct of the Advocates and set out certain parameters on which the Bar Council can
weigh upon while deciding the quantum of punishment. The Court also opined that
embezzlement of client’s money by an advocate is regarded as the severest and there is no
justification in reducing the quantum of punishment as it is a clear breach of trust of the
client and thereby maligning the reputation of the noble profession of advocacy.
Parties:
1. The Appellant, Harish Chandra Tiwari is a practicing Advocate and is enrolled with the
Bar Council of UP since May 1982 and has been practicing in the courts at Lakhimpur
Kheri District in U.P.
2. The Respondent, Baiju is the client of Adv. Harish Chandra Tiwari and has engaged Mr.
Harish in a land acquisition case in which the Respondent was the Claimant for
compensation.

Facts

1. In this case Mr. Baiju hired Mr. Harish Chandra Tiwari for a land
acquisition case who was an enrolled as an Advocate with the Bar Council
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of UP since 1982 and has been practicing in the District Courts of UP
mainly in Lakimpur Keri District.

2. Mr. Baiju was the claimant for the compensation in the case for which
after he won, the State deposited a compensation of Rs. 8118/- in the
Court. Mr. Baiju was an old, helpless, and poor illiterate person.

3. Mr. Harish Chandra Tiwari on behalf of his client withdrew the said
amount from the Court on 02.09.1987 and did not informed and did not
retuned that amount to his client Mr. Baiju to whom the amount was
payable.

4. Mr. Baiju after a long time came to know about this and after failing to
recover the amount from his lawyer, he filed a complaint with the Bar
Council of UP to look into this matter and take suitable disciplinary action
against the Appellant.

5. On 12.07.1988, the Appellant admitted that he was engaged as the

counsel for the Respondent in a land acquisition case and he withdrew the
amount from the Court, but he returned it to the Respondent after
deducting the appropriate legal fees and expenses.

6. On 03.08.1988, the appellant filed an affidavit on behalf of the

respondent without his knowledge before the Bar Council of UP in which
it was clearly stated that a compromise has been entered between the
Appellant and the Respondent and there is no need take any further action
on the complaint filed by the Respondent. Not being convinced, the State
Bar Council summoned the Respondent for the verification of the said
Affidavit, where the Respondent denied the contents of the affidavit and
told that there was no such compromise between the Appellant and the
Respondent and disclaimed that he received any compensation amount.

7. After the said incident, the case was transferred to the Bar Council of
India under Section 36B (2) of the Advocates Act 1961 to start the
disciplinary proceedings against the Appellant.

8. The Disciplinary Committee after having viewed the contents of the

case concluded that affidavit filed by the Appellant was a forged one and
was fabricated. Therefore, the conduct of Mr. Harish Chandra Tiwari and
his elusive imprecise testimony duly makes out that after taking the cheque
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from the Land Acquisition Officer in his own name, Mr. Harish failed to
make the compensation to Mr. Baiju who is uneducated, poor person and
his money has been misappropriated by the delinquent Advocate.

9. The Appellant was not able to prove that he has paid the amount to the
Respondent and the factual position remains against him. The Appellant
withdrew the amount and failed to deliver it to his client for more than 11
years and therefore is guilty of professional misconduct and has smeared
the reputation of the entire moral vocation and has committed a breach of
trust.

10. After the decision of the Disciplinary Committee which held Mr.
Harish guilty of breach of trust for misappropriating the assets of the client
and imposed a punishment of suspending him from practice for a period of
3 years. Aggrieved by the decision of the Disciplinary Committee, the
Appellant hereby preferred appeal to the Supreme Court of India
under Section 38 of the Advocates Act 1961.

Issues

1. Whether the punishment shall be enhanced to the removal of the name

of the Advocate from the Roll of the Bar Council of UP or not?

2. What all factors needs to be determined while awarding a punishment

by the Disciplinary Committee on proved misconduct?

3. Does Supreme Court have the power to vary or alter the punishment
awarded by the Disciplinary Committee of the Bar Council of India?

Applicable Laws

1. Section 38 of the Advocates Act 1961– Appeal to the Supreme Court.

2. Section 36B (2) of the Advocates Act 1961– Disposal of Disciplinary

Proceedings.

3. Section 35 of the Advocates Act 1961– Punishment of Advocates for

Misconduct.

Arguments advanced by the Parties

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· The Appellant contended that he is not liable to be punished at all and
on the other hand pleaded that he has returned the money to his client.

· The Appellant also contended that he withdrew the amount out of the
court in order to return it to the client after deducting his legal fees and
expenses and also filed an affidavit stating that there has been a
compromise between him and his client.

· The Appellant also cited two citations in his favor in which the
punishment awarded has not been escalated to the removal of the Advocate
from the Roll itself. The Appellant cited Prahlad Saran Gupta vs Bar
Council of India and Another, where the crook advocate retained a sun of
Rs 1500 without sufficient justification for a period of 4 years and then
submitted the said amount in the court without dispersing the amount to
his client. Therefore, it was held that this act of the Advocate was not in
harmoniousness with the professional standards and the court imposed a
punishment of reprimanding the advocate concerned[1].

· Another case cited by the Appellant is BR Mahalkari vs YB Zurange,

in which the advocate retained the sum of Rs 1176/- which was returned
by him to the client before the proceedings by disciplinary committee were
initiated. Therefore, the committee found the advocate guilty of
professional misconduct and disbarred him from practicing for a period of
3 years. [2]

Decision/Ratio Decidendi

In the following case the Supreme Court opined that the cases cited by the
Appellant are of no help as the facts of the case in different are totally
different and speak for themselves. Therefore, Supreme Court held that the
misconduct of the Appellant is of a far pointrel breadth. The Supreme
Court imposed the punishment of removal of the name of the Appellant
from the roll of the Advocates and was held debarred from practicing in
any court of law or before any authority or person in India.

The Supreme Court said that the cases cited by the Appellant will not help
in extenuating the quantum of punishment.

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Case Analysis

In this particular case, the Supreme Court while examining the

facts and circumstances of the case also preached and decided the above
issues. The Appellant in its appeal contended that he is not liable to be
punished and had returned the money to the client. But in the opinion of
the Supreme Court the Appellant was not able to prove and could not show
a single piece of evidence to prove his innocence. On the other hand, the
Appellant held the amount of Rs 8118/- in his possession for a period of
more than 11 years and is thus guilty of professional misconduct and has
also slandered the status of the noble profession of advocacy and also
committed a criminal breach of trust.

Addition to the above circumstances, the Appellant also filed a forged

affidavit on behalf of his client that there is a settlement arrived between
him and his client in front of the Disciplinary Committee in order to quash
the disciplinary proceedings going against the Appellant. This amounts to a
grave offence and also disrupt the carriage of justice. Therefore, the
Hon’ble Supreme Court was precise in enhancing the punishment of the
Appellant thereby removing him from his name from the roll of the Bar
Council of UP and restrained him from practicing in front of any court of
law or in front of any person in India.

Referring to the second issue, the Hon’ble Supreme Court of India

laid down certain criteria for deciding the quantum of punishment, which
was to be awarded to the aberrant advocate, since the punishment awarded
by the Disciplinary Committee of the Bar Council of India was not
proportional to the seriousness of felony committed. While deciding the
punishment the Bar Council must weigh various factors such as:

· Acute need to purify the legal profession from those advocates who are
disposed to embezzling money of the clients. Deterrence is
thus a protruding deliberation. This option is practically
necessary when the legal profession has become
overcrowded, without there being any active sieving process
at the time of admittance.

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· To keep up the professional standards it becomes essential that nobody
should form the imprint that once a person is admitted to the
legal profession, he would be immune to any punitive
measures and is free to indulge in despicable or detectable
activities. Therefore, only the Bar Council of India or of the
State is the only appropriate authority which can efficiently
maintain this probity of the legal profession.

· The proper message should be conveyed to all the members of the legal
fraternity that they are being watched, regarding their
professional activities, through the lenses by the Bar Council
and that its Disciplinary Committee would not acquiesce any
professional incapacity with escape piece penalty.

With regards to various types of professional misconduct, embezzlement

with client’s money is regarded as one of the severest. There is a fiduciary
relationship between a layer and his client, and it is the duty of the lawyer
to keep his client’s money safe. If an advocate embezzles money of his
client, then there is no reason in reducing the seriousness of the offence.
But if such breach of trust remained only for a temporary period of time,
then the penalty can be mitigated to a certain extent. But there must be a
proper justification as to the award of lesser punishment where the crook
advocate returned the money before instigation of the disciplinary
proceedings.

Referring to the third issue, as per Section 38 of the Advocates Act

1961, the Hon’ble Supreme Court of India has the power to pass such
order including an order varying the punishment awarded by the
Disciplinary Committee of the Bar Council of India or of the State as it
deems fit, provided that there must a reasonable opportunity give by the
court to the Advocate of being heard if such order will prejudicially effect
the appellant by varying his punishment. Therefore, in the present appeal a
notice was given to the learned counsel for the appellant to show cause
why the punishment should not be enhanced to removal of the name of the
Appellant from the roll of the Bar Council of the State[3].

Section 35 of the Advocates Act, 1961 envisions three different

punishments such as:
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· Reprimand the Advocates

· Suspend the Advocate from practice for such period as it may deem fit

· Remove the name of the Advocates from the State roll of advocates[4]

Prahlad Saran Gupta vs Bar Council of India and Another, (1997) 2

[1]
SCR 499.

[2] BR Mahalkari vs YB Zurange, (1997) 11 SCC 109.

[3] Section 38, Advocates Act 1961.
[4] Section 35, Advocates Act 1961.

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