Project Report of Professional Ethics

8/10/2019 Project Report of Professional Ethics

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PROJECT REPORT OF PROFESSIONAL

ETHICS

TOPIC DUTY TO THE CLIENT; CASE LAW -

Shambhu Ram Yadav vs. Hanum Das Khatry

SUBMITTED TO:- COMPILED BY:-

Mrs. HARMAN SHERGILL SULLAR MOHIT MUNJAAL

Roll No. 197/11

6

th

Semester

UILS PANJAB UNIVERSITY

CHANDIGARH


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RULES ON AN ADVOCATES DUTY TOWARDS THE CLIENT

When is the Advocate - Client Relationship Formed?

Usually, an advocate - client relationship is formed when a client signs a contract for

representation by the advocate. It can also be formed upon payment of a sum of money by the

client to the advocate in order to secure legal advice or other legal services. A relationship may

be formed upon revelation of privileged or confidential information by the client to the advocate

(about his or her case).

The key question in determining whether an advocate - client relationship exists is whether the

client reasonably believes the advocate is representing his interests and/or providing him with

legal guidance.

What are the duties of an advocate towards his client?

The advocate must uphold the interests of his client. The advocate must know the law and

protect his clients interest. He must strictly observe the obligationshe owes his client, failure of

which may result in certain penalties including monetary fines, a malpractice verdict, and/or loss

of the advocates licenseto practice law.

Rules 11 to 33 deal with the duties of an advocate to his client are mentioned in Chapter II,

Part VI of the Bar Council of India Rules. These rules have been placed there under section

49(1)(c) of the Advocates Act, 1961.

1. Bound to accept briefs (Rule 11)

An advocate is bound to accept any brief in the courts or tribunals or before any other authority

in or before which he proposes to practise. He should levy fees which is at par with the fees

collected by fellow advocates of 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 (Rule 12)

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve

them. He can withdraw only if he has a sufficient cause and by giving reasonable and sufficient

notice to the client. Upon withdrawal, he shall refund such part of the fee that has not accrued to

the client.


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3. Not appear in matters where he himself is a witness (Rule 13)

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 jeopardising his clients

interests.

4.Full and frank disclosure to client (Rule 14)

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 clients judgement

in either engaging him or continuing the engagement.

5. Uphold interest of the client (Rule 15)

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 (Rule 16)

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 (Rule 17)

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. (Rule 18)


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9. An advocate should not act on the instructions of any person other than his client or the

clients authorised agent.(Rule 19)

10. Not charge depending on success of matters (Rule 20)

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 (Rule 21)

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 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 (Rule 22)

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 (Rule 23)

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 (Rule 24)

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. (Rule 25)


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16.Keep proper accounts (Rule 26)

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 (Rule 27)

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 (Rule 28)

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 (Rule 29)

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 andexpenses from the account must be returned to the client.

20. Provide copy of accounts (Rule 30)

An advocate must provide the client with the copy of the clients 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. (Rule 31)

22. Not lend money to his client (Rule 32)

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


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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 (Rule 33)

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.

Although a lawyer has to represent his client to the best of his ability, he cannot engage in

any unlawful activity under the pretext of protecting his clients interests an advocates

first loyalty is to the law.


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Shambhu Ram Yadav vs Hanum Das Khatry

Decided on 26 July, 2001

FACTS

A complaint filed by the appellant against the respondent, Advocate before Bar Council of

Rajasthan was referred to Disciplinary Committee constituted by the State Bar Council. In

substance, the complaint was that respondent while appearing as a counsel in a suit pending in a

civil court wrote a letter to Mahant Rajgiri his client inter alia stating that his another client has

told him that the concerned judge accepts bribe and he has obtained several favourable orders

from him in his favour; if he can influence the judge through some other gentleman, then it isdifferent thing, otherwise he should send to him a sum of Rs.10,000/- so that through the said

client the suit is got decided in his (Mahant Rajgiri) favour. The letter further stated that if

Mahant can personally win over the judge on his side then there is no need to spend money. This

letter is not disputed. In reply to complaint, respondent pleaded that the services of the Presiding

Judge were terminated on account of illegal gratification and he had followed the norms of

professional ethics and brought these facts to the knowledge of his client to protect his interest

and the money was not sent by his client to him. Under these circumstances it was urged that the

respondent had not committed any professional misconduct.


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CONTENTIONS

1. The respondent filed a review petition under Section 44 of the Advocates Act against the

order dated 31st July, 1999. The review petition was allowed and the earlier order

modified by substituting the punishment already awarded permanently debarring him

with one of reprimanding him. The impugned order was passed by the Disciplinary

Committee comprising of three members of which two were not members of the earlier

committee which had passed the order dated 31st July, 1999.

2. The review petition was allowed by the Disciplinary Committee for the reasons, which,

in the words of the Committee, are these:

"1) The Committee was under the impression as if it was the petitioner who had written a

letter to his client calling him to bribe the judge. But a perusal of the letter shows that the

petitioner has 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 a offer on the side of the delinquent

advocate to bribe a judge. This vital point which touches the root of the controversy seems to

have been ignored at the time of the passing the impugned order.

2) The petitioner is an old man of 80 years. He had joined the profession in the year 1951 and

during such a long innings of his profession, it was for the first time that he conducted

himself in such an irresponsible manner although he had no intention to bribe.

3) The Committee does not approve the writing of such a letter on the part of the lawyer to

his client but keeping in view the age and past clean record of the petitioner in the legal

profession the Committee is of the view that it would not be appropriate to remove the

advocate permanently from the roll of advocates.......The Committee is of the considered

view that ends of justice would be met in case the petitioner is reprimanded for the omission

he had committed. He is warned by the Committee that he should not encourage such

activities in life and he should be careful while corresponding with his client.


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LEGAL PROVISIONS APPLICABLE IN THE CASE

Section 35 in The Advocates Act, 1961

35. Punishment of advocates for misconduct.-

(1)Where on receipt of a complaint or otherwise a State Bar Council has reason to believe thatany advocate on its roll has been guilty of professional or other misconduct, it shall refer the case

for disposal to its disciplinary committee.

(1A)3[ 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 4[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 sub- section (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 committee of the State Bar Council either in person

or through any advocate appearing on his behalf. 1[ Explanation.-- In this section, 2[ section 37

and section 38], the expressions" Advocate- General" and" Advocate- General of the State" shall,

in relation to the Union territory of Delhi, mean the Additional Solicitor General of India.]

Section 44 in the Advocates Act, 1961

44. Review of orders by disciplinary committee. - The disciplinary committee of a Bar Council

may of its own motion or otherwise review any order 2[within sixty days of the date of thatorder] passed by it under this Chapter: Provided that no such order of review of the disciplinary

committee of a State Bar Council shall have effect unless it has been approved by the Bar

Council of India.
http://indiankanoon.org/doc/1426050/http://indiankanoon.org/doc/1426050/http://indiankanoon.org/doc/24910/http://indiankanoon.org/doc/24910/http://indiankanoon.org/doc/1031289/http://indiankanoon.org/doc/1031289/http://indiankanoon.org/doc/176500/http://indiankanoon.org/doc/176500/http://indiankanoon.org/doc/1720186/http://indiankanoon.org/doc/1720186/http://indiankanoon.org/doc/383084/http://indiankanoon.org/doc/383084/http://indiankanoon.org/doc/1710122/http://indiankanoon.org/doc/1710122/http://indiankanoon.org/doc/549231/http://indiankanoon.org/doc/549231/http://indiankanoon.org/doc/1225988/http://indiankanoon.org/doc/1225988/http://indiankanoon.org/doc/1819456/http://indiankanoon.org/doc/1819456/http://indiankanoon.org/doc/1819456/http://indiankanoon.org/doc/1225988/http://indiankanoon.org/doc/549231/http://indiankanoon.org/doc/1710122/http://indiankanoon.org/doc/383084/http://indiankanoon.org/doc/1720186/http://indiankanoon.org/doc/176500/http://indiankanoon.org/doc/1031289/http://indiankanoon.org/doc/24910/http://indiankanoon.org/doc/1426050/


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DECISION

1. The State Bar Council noticing that the respondent had admitted the contents of the letter

came to the conclusion that it constitutes misconduct. In the order the State Bar Council

stated that keeping in view the interest of the litigating public and the legal profession

such a practice whenever found has to be dealt with in an appropriate manner. Holding

respondent guilty of misconduct under Section 35 of the Advocates Act, State Bar

Council suspended him from practice for a period of two years with effect from 15th

June, 1997.

2. The respondent challenged the aforesaid order before the Disciplinary Committee of Bar

Council of India. By order dated 31st July, 1999, the Disciplinary Committee of Bar

Council of India comprising of three members enhanced the punishment and directed thatthe name of the respondent be struck off from the roll of advocates, thus debarring him

permanently from the practice. The concluding paragraph of the order dated 31st July,

1999 reads thus:

"In the facts and circumstances of the case, we also heard the appellant as to the

punishment since the advocate has considerable standing in the profession. He has served

as advocate for 50 years and it was not expected of him to indulge in such a practice of

corrupting the judiciary or offering bribe to the judge and he admittedly demanded

Rs.10,000/- from his client and he orally stated that subsequently order was passed in his

client's favour. This is enough to make him totally unfit to be a lawyer by writing the

letter in question. We cannot impose any lesser punishment than debarring him

permanently from the practice. His name should be struck off from the roll of advocates

maintained by the Bar Council of Rajasthan. Hereafter the appellant will not have any

right to appear in any Court of Law, Tribunal or any authority. We also impose a cost of

Rs.5,000/- to the appellant which should be paid by the appellant to the Bar Council of

India which has to be paid within two months."

3. In view of the aforesaid observations, the review petition is accepted and the earlier

judgment of the Committee dated 31.7.1999 is modified to the extent and his suspension

for life is revoked and he is only reprimanded."

4. The original order has been reviewed on non-existent grounds. All the factors taken into

consideration in the impugned order were already on record and were considered by the


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Committee when it passed the order dated 31st July, 1999. The power of review has not

been exercised by applying well settled principles governing the exercise of such power.

It is evident that the reasons and facts on the basis whereof the order was reviewed had

all been taken into consideration by the earlier Committee. The relevant portion of the

letter written by the advocate had been reproduced in the earlier order. From that

quotation it was evident that the said Committee noticed that the advocate was replying to

letter received from his client. It is not in dispute that the respondent had not produced

the letter received by him from his client to which the admitted letter was sent requiring

his client to send Rs.10,000/- for payment as bribe to the concerned judge. We are unable

to understand as to how the Committee came to the conclusion that any vital point in

regard to the letter had been ignored at the time of the passing of the order dated 31st

July, 1999. The age and the number of years the advocate had put in had also been

noticed in the order dated 31st July, 1999. We do not know how the Committee has cometo the conclusion that the respondent `had no intention to bribe the judge'. There is

nothing on the record to suggest it. The earlier order had taken into consideration all

relevant factors for coming to the conclusion that the advocate was totally unfit to be a

lawyer having written such a letter and punishment lesser than debarring him

permanently cannot be imposed. The exercise of power of review does not empower a

Disciplinary Committee to modify the earlier order passed by another Disciplinary

Committee taking a different view of the same set of facts.

5. The respondent was indeed guilty of a serious misconduct by writing to his client the

letter as aforesaid. Members of the legal profession are officers of the court. Besides

courts, they also owe a duty to the society which has a vital public interest in the due

administration of justice. The said public interest is required to be protected by those on

whom the power has been entrusted to take disciplinary action. 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. Considering the

nature of the misconduct, the penalty of permanent debarment had been imposed on the

respondent which without any valid ground has been modified in exercise of power of

review. It is the duty of the bar councils to ensure that lawyers adhere to the required

standards and on failure, to take appropriate action against them. The credibility of a

council including its disciplinary body in respect of any profession whether it is law,

medicine, accountancy or any other vocation depends upon how they deal with cases of

delinquency involving serious misconduct which has a tendency to erode the credibility


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and reputation of the said profession. The punishment, of course, has to be commensurate

with the gravity of the misconduct.

6. In the present case, the earlier order considering all relevant aspects directed expulsion of

respondent from profession which order could not be lightly modified while deciding a

review petition. It is evident that the earlier Committee, on consideration of all relevant

facts, came to the conclusion that the advocate was not worthy of remaining in the

profession. The age factor and the factor of number of years put in by the respondent

were taken into consideration by the Committee when removal from the roll of the State

Council was directed. It is evident that the Bar Council considered that a high standard of

morality is required from lawyers more so from a person who has put in 50 years in

profession. One expects from such a person a very high standard of morality and

unimpeachable sense of legal and ethical propriety. Since the Bar Councils under the

Advocates Act have been entrusted with the duty of guarding the professional ethics, theyhave to be more sensitive to the potential disrepute on account of action of a few black

sheeps which may shake the credibility of the profession and thereby put at stake other

members of the bar. Considering these factors, Bar Council had inflicted in its earlier

order the condign penalty. Under these circumstances, we have no hesitation in setting

aside the impugned order dated 4th June, 2000 and restoring the original order of Bar

Council of India dated 31st July, 1999.

7. The appeal is thus allowed in the above terms with costs quantified at Rs.10,000/-.

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