Harish Chandra Tiwari (Appellant)

Versus
Baiju (Respondent)

UNDER THE GUIDANCE OF:

Dr. Digvijay Singh

BY:

GAURAV KUMAR
B.SC.LL.B. (Hons.)

th SEMESTER
10
CUSB1513115007
(2015-2020)

SCHOOL OF LAW AND GOVERNANCE

CENTRAL UNIVERSITY OF SOUTH BIHAR GAYA-

823001
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INDEX:

S. No. TOPIC PAGE NO.

01 ACKNOWLEDGEMENT 03

02 TITLE OF CASE 04

03 PROFESSIONAL ETHICS- AN INTRODUCTORY VIEW 05-06

04 HYPOTHESIS 07

05 RESEARCH METHODOLOGY 08

06 FACTS OF THE CASE 09

07 ISSUE OF THE CASE 10

08 ARGUMENTS ADVANCED 10

09 CASES REFERRED 10

10 DECISION OF THE COURT 11-12

11 CRITICAL ANALYSIS 13-14

12 CONCLUSION 15

13 BIBLIOGRAPHY 16

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 ACKNOWLEDGMENT

It is a matter of great pleasure for me to present this project work on a very landmark
case of Professional Ethics. I quite appreciate the overwhelming response of my faculty
the effort to this project had provided me an opportunity to revise the different
provisions of the part and bring it to up to date. This project had been continued with
considering different Legal provisions and case laws.
This project has been discussed under its different headings illustrating the different
contents so far included in this part.
Lastly, I appreciate the help and cooperation rendered by my faculty, Dr. Digvijay
Singh without whom the project could not have been brought out in the present form.
My thanks are due to services which I got in identifying my project as for successful
completion. Suggestions from the reader will be welcome and thankfully acknowledged.
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Title of the Case

Harish Chandra Tiwari (Appellant)

Versus

Baiju (Respondent)

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 200 of 2000

Decided On: 08.01.2002

Equivalent Citation: AIR2002SC547, (2002) 1

UPLBEC 313

BEFORE:
(K. T. THOMAS AND S.N. PHUKAN, JJ.)

Counsel’s: M.N. Kashyap, Advocate, for the Appellant.

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 PROFESSIONAL ETHICS: AN INTRODUCTORY VIEW

An obligation to his clients to be faithful to them till the last, an obligation to the profession not to
besmirch its name by anything done by him, and an obligation to the court to be and to remain a
dependable part of the machinery through which justice is administered. The scope of legal ethics is
beyond the treatise of evidence or witnesses to be presented before the court. In examining these
witnesses the advocate should not forget that he is not mere the counsel of the client but also the
officer of the court. In this way there are some of the duties thereinafter which the advocate should
follow, like, professional courtesy, co-operation, equal consideration to all members of the
profession, encourage junior brethren, should stand up for its dignity and privileges whenever there
is occasion for it, he should expose corrupt or dishonest conduct in the profession. In the words of
Chief Justice Marshall has observed; “the fundamental aim of Legal Ethics is to maintain the honor
and dignity of the Law Profession, to secure a spirit of friendly cooperation between the Bench and
the Bar in the promotion of highest standards of justice, to establish honorable and fair dealings of
the counsel with his client opponent and witnesses; to establish a spirit of brotherhood in the Bar
itself ; and to secure that lawyers discharge their responsibilities to the community generally.”

The performance of the duty by the Advocate defines the determination, dedication and loyalty
towards the profession. The profession of law is honorable and it is expected from every person who
are in this profession to be honest and work in upright manner. And any deviation in their
performance of duty should be taken seriously. An Advocate in this profession has many obligations
towards court, client, judge, opponent, colleagues, etc. The Advocate who does not work with
sincerity, who does not follow the rules of conduct is said to have misconducted in his profession.
He is guilty of the misconduct of duty for which he is punished. In order to avoid misconduct one
should work in proper and appropriate manner not for the sake of getting punished but for being
loyal towards them, their profession. The fundamental aim of legal ethics is to maintain the honor
and dignity of the law profession, to secure a spirit of friendly co-operation, to establish honorable
and fair dealings of the counsel with his client, opponent and witnesses, to establish the spirit of
brotherhood in the Bar itself; and to secure that lawyers discharge their responsibilities to the
community generally. Legal profession is necessarily the keystone of the arch of government. Legal
profession is not a business but a profession.

Professional Misconduct: Misconduct means a wrongful, improper, or unlawful conduct motivated

by premeditated act. It is an activity of not conforming to prevailing standards or laws or dishonest
or deceitfulness, generally by people entrusted or engaged to act on behalf of others. The expression
professional misconduct in the simple sense means improper conduct. In law professional
misconduct means an act done willfully with a wrong intention by the people engaged in the
profession. Misconduct signifies any activity of an advocate in violation of professional ethics for
his selfish ends. If an act creates disrespect to his profession and makes him unworthy of being in the
profession, it amounts to professional misconduct. In other words an advocate which seeks to fulfill
his selfish ends at the cost of his client such act amounts to disqualification for an advocate to
continue in Legal profession.
Misconduct is sufficiently comprehensive to include misfeasance as well as malfeasance and is
applied to the professional people, it include unprofessional acts even though they are not inherently

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wrongful. The professional misconduct may consist the fact in any conduct, which tends to bring
reproach on the legal profession or to alienate the favorable opinion which the public should
entertain concerning it. In state of Punjab v Ram Singh the Supreme Court held that the term
misconduct may involve moral turpitude, it must be improper or wrong behavior, unlawful behavior,
illicit in character, a forbidden act, a transgression of established and definite rule of action or code
of conduct, but not mere error of judgment, carelessness or negligence in performance of duty.

The Advocates Act, 1961 is a comprehensive statute that regulates the conducts of Legal
practitioners and legal education in India. The legislature envisioned the establishment of Bar
Council of India and State Bar Councils thus formed various disciplinary committees to concordat
the misconduct of the advocates. The provision relating to the admission and enrolment of advocate,
the right to practice advocacy are being provided under the Advocates Act, 1969. Sections 35 to 44
are enumerated under Chapter V to look out the conducts of the advocated. The statute has conferred
penalizing power to the Bar Council of India to maintain discipline among the advocates and for the
professional and other misconduct. To attract the provision i.e., Section 35 of the Act the act of
misconduct must not need to be a professional misconduct in itself. The expression used in the
section is Professional or other misconduct. Since not all events are connected with profession but
they may amount to misconduct for example conviction for a crime even when the crime was not
committed in the professional capacity. At the same time it is to be noted that a mere conviction is
not sufficient to find an advocate guilty of misconduct, the court must look in to the nature of the act
on which the conviction is based to decide whether the advocate is or is not an unfit person to be
removed from or to be allowed to remain in the profession.

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 HYPOTHESIS

A. The proceeds of Legal Profession never confers immunity to indulge in unethical or

nefarious practices rather it sets an impression warranting deterrence as it's prominent
consideration for the same.

B. The dimension of the gravity of punishment shall only be compromised if it affects

prejudicially the aggravating circumstances of the case.

C. The Disciplinary Committee of the Bar Council of State as well as of India acts as a
watchdog in every professional activities through its binoculars and is not allowed to acquiesce
any professional delinquency with flee-bite punishment.

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 RESEARCH METHODOLOGY

The research methodology used in completion of this project is mainly of Doctrinal nature.
However the Second sources such as books and journals have been included in completing the
project. It had been carried out on the cases already decided. Though, the same involves a
comprehensive analysis of a case law and it's arranging, ordering, and deducting the legal
propositions. The case law has been examined as laid down under this work.

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 FACTS OF THE CASE

Appellant was enrolled as an advocate with the Bar Council of state of U.P in May,1982, and has
been practicing since then. Appellant was engaged by Baiju respondent, in a land acquisition case in
which the respondent was claimant for compensation of RS. 8118 /- for acquisition of Land of the
said Baiju. The same was deposited by the state in the court. The appellant applied for releasing the
amount and as per the Courts order withdrew the amount on 2 September 1987 but he did not return
it to the client to whom it was due nor did he informed client about the receipt of the amount.

Long thereafter, when the client got the knowledge of it and after failing the to said amount
unreturned by the Advocate, a complaint was lodged by him with the bar council of state for
initiating the suitable disciplinary action against Appellant.

On 12 -7-1988, the appellant replied to the said complaint before the Bar Council of the State
admitting to have withdrawn the said amount. Thereafter on 3-8-1988 a false affidavit was filed by
the appellant stating that a compromise had been arrived at between him and his client and no action
need be taken on complaint by the respondent. After summoning and verifying the document the
Disciplinary Committee found that the said affidavit was not known in the eyes of the respondent
and no amount had been received from the appellant-advocate.

Under section 36-B the Act of proceedings stood transferred to the bar council of India. The
disciplinary committee conducted enquiry and came to the conclusion that the affidavit dated 3
August, 1988 was forged one and that application was fabricated. On these findings the committee
imposed a punishment of suspending the Advocate from practice for a period of 3 years.

Against this order that an appeal is made by the delinquent advocate before the Honorable court
under Section 38 of Advocates Act, 1961.

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 ISSUE OF THE CASE

A. Why the punishment should not be enhanced to removal from roll of Bar Council of
State to meet the adequacy of the gravity in the misconduct of the delinquent
advocate?

ARGUMENTS ADVANCED

In this appeal, appellant first pleaded that he is not liable to be punished at all and then contended
alternatively that he has given the money to the client subsequently. Learned Counsel for the
appellant cited two decisions of this Court in which the punishment awarded has not been escalated
to removal from the roll. One is Prahlad Saran Gupta v. Bar Council of India and anr, JT 1997 (3)
SC 186: 1997 (3) SCC 585. In that case, the finding against the delinquent advocate was that he
retained a sum of Rs. 1500/- without sufficient justification from 4.4.1978 till 2.5.1978 and he
deposited the amount in the Court on the latter date, without disbursing the same to his client. On the
said fact situation, this Court imposed a punishment of reprimanding the advocate concerned.

The other case cited by the learned Counsel is B. R. Mahalkari v. Y.B. Zurange, JT 1998 (9) SC 385:
1997 (11) SCC 109. The findings in that case is that the advocate retained the amount of Rs. 1,176/-,
though before the commencement of the disciplinary proceedings he sent the said amount to the
client.

Cases referred:
a. PRAHLAD SARAN GUPTA V. BAR COUNCIL OF INDIA,(1997) 3 SCC 585.

b. R. MAHALKATI V. Y.B. ZURANGE, (1997) 11 SCC 109.

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 DECISION OF THE COURT

In determining the punishment to be awarded by the disciplinary committee on proved misconduct in

each case, the committee should weigh various factors. One of them is the acute need to cleanse the
legal profession from those who are prone to misappropriating the money of the clients. Deterrence
is thus a prominent consideration. This is particularly necessary at a time when the legal profession
has become crowded as it is today, without there being any effective filtering process at the
admission stage. Secondly, to keep up the professional standards, it is necessary that nobody should
form the impression that once a person is admitted to the legal profession, he would be immune to
any punitive measures and is free to indulge in nefarious or detestable activities. The only authority
which can effectively maintain the probity of the legal profession is the disciplinary committee of
the Bar Council, either of the State or of India. The proper message which should go to all members
of the legal profession is that they are all being watched, regarding their professional activities,
through binoculars by the Bar Council of the State as well as by the Bar Council of India and that
their disciplinary committees would not acquiesce any professional delinquency with flee bite
punishment.

Among the different types of misconduct envisaged for a legal practitioner, misappropriation of the
client's money must be regarded as one of the gravest. In his professional capacity, the legal
practitioner has to collect money from the client towards expenses of the litigation, or withdraw
money from the Court payable to the client or take money of the client to be deposited in Court. In
all such cases, when the money of the client reaches his hand, it is a trust. If a public servant
misappropriates money, he is liable to be punished under the present Prevention of Corruption Act,
with imprisonment which shall not be less than one year. He is certain to be dismissed from service.
But if an advocate misappropriates money of the client, there is no justification in de-escalating the
gravity of the misdemeanor. Perhaps the dimension of the gravity of such breach of trust would be
mitigated when the misappropriation remained only for a temporary period. There may be
justification to award a lesser punishment in a case where the delinquent advocate returned, the
money before commencing the disciplinary proceeding.

In the present case, the misappropriation remained unabated even after the disciplinary proceedings
commenced and it continued even till now as the delinquent advocate did not care to return even a
single pie to the client. The misconduct of the appellant-advocate became more aggravated when he
determined to forge an affidavit in the name of his client, which he produced before the disciplinary
committee in order to defraud his client and to deceive the disciplinary committee to believe that he
and his client had settled the dispute by making a late payment to his client.

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By retaining such advocate on the roll of the legal profession, it would be unsafe to the profession.
The situation in this case thus, warrants the punishment of removal of his name from the roll of
advocates.

The facts in the aforecited decisions, mentioned by the Learners Counsel for the appellant would
speak for themselves and the distinction from the facts of this case is so glaring that the misconduct
of the appellant in the present case is of a far graver dimension. Hence, the said two decisions are not
of any help to the appellant for mitigation of the quantum of punishment.

In the result, we dispose of this appeal by imposing the punishment of removal of the name of the
appellant from the roll of the advocates. He would thus stand debarred from practicing in any Court
or before any authority or person in India.

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 CRITICAL ANALYSIS

Advocacy, no doubt, is an honorable as well as noble profession. This could be said because of that
strict compliance of the professional ethics and standards to which an advocate submit it to, while
entering inside it. The severity of the punishment in case of delinquent practices demands a
judgment which traces the strict measures while adjudging it. In connection to it the term
professional misconduct confers any act in violation of professional ethics for his selfish ends. Else it
may consist of in betraying the confidence of a client, in attempting by means to practice fraud, to
deceive the Court or adverse party or his Counsel.

Although an advocate while discharging his professional assignment has a duty to the court, duty
towards his client, a duty to his opponent, a duty to the society at large and a duty to himself as well.
It requires high degree of probity and poise to strike a balance to arrive at the place of righteous
stand, during the times when there are conflicting claims. Illustratively, they had got the
responsibility to render services of sound quality. Deficiency is services in the nature of absence
when the matters are scheduled, filing of incomplete and inaccurate pleadings, lots of time even
illegible and without personal check and verification, the non-payment of court fees and process fees
amount to deficiency in work. Usually the act of an Advocate affects only to his clients but in certain
circumstances persons who are directly injured by the acts of the advocates or omissions can also
bring an action against him. An Advocates liability to the disappointed beneficiary is recognized in
many jurisdictions. Legal profession does not allow an advocate to withdraw his liability for
deficiency in services. If a legal professional contracts out his liability for deficiency in services such
acts are barred under Law and puts prohibition against such activities to protect the interests of the
clients from the unscrupulous legal professionals.

The dimensions characterizing lawyers’ malpractice are more extensive in nature and the issues that
arise differ in important ways depending on those dimensions. As one would expect, there is a lot of
variation in the characteristics of legal malpractice cases. We would argue that the variation in this
area of professional negligence is substantially greater than in the most visible area, medical
negligence. The dimensions characterizing lawyers’ malpractice are more extensive than those
characterizing other malpractice and the issues that arise differ in important ways depending on
those dimensions. However, the standard which is applied for judging any professional misconduct
refers to the statement that whether the person charged has been negligent or not would be that of
ordinary competent person exercising ordinary skill in that configuration. As the same could not be
judged on the yardstick of highly qualified professional but the same should be considered based
upon the true nature of the facts and relevant provisions under the acts.

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The relationship which is shared between an advocate and his client is a relationship of trust also
known as fiduciary relationship. In this a lawyer is responsible and has the liability to keep the
conversation relating to case matters private and maintain secrecy. If such measurements are not
being taken by an advocate hired by a person to resolve the matter involving and having knowledge
of Law which thus requires a legal professional to deal with certain matters by productively using his
competence. If the advocate does not respect the relationship and fail to maintain the secrecy about
the case matter therefore he is deficient in rendering quality sound service which he is bound to
render. I want to conclude that it is not the number of laws or the out-dated or old laws which cause
problem but it is the ineffective and incompetent mechanism which implements them. Thus,
advocacy is a noble profession and it requires some degree of ethics and moral values which each
and every profession requires. Professional ethics form the foundation in the lives of the lawyers.
Every person has been given the right to engage a lawyer of their choice to represent their case. It
means that lawyers have the constitutional obligation to take up the case of every person who
approaches them for legal representation. Therefore, it can be rightly said nothing is so elusive as the
art of acting, unless indeed it be the sister art of advocacy.

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 CONCLUSION

The interference in the form of concluding the overall case, as explicated in this work requires
intimation to the role of accused responsible for maligning the reputation of this noble solemn and
serious profession. The legal profession stands alone in respect to the other profession because it is
described as a place where justice is administered to a civilized society. However, if the profession
would itself indulge in unfair means, where will the recourse be imperative? A brief outline to this
assumption has been made out in the judgment of instant case. The issue of the case has revolved
around the client’s money which he obtained from the court in a land acquisition matter but was
misappropriated in the hands of this advocate, claiming it as his litigation expense initially. The
same (i.e. misconduct) resulted in a disciplinary proceeding against the delinquent advocate and even
though he did not return a single pie to the client. Here, it is evident that the advocate holds the
money in trust and owed his professional duty to return the amount to his clients. But, in response of
this failure to do so, warranted the Disciplinary Committee of the Bar Council of India, imposing the
punishment of three years suspension from practicing before any court of law. On appeal, the
Supreme Court rightly pointed out the gravity of such breach of trust as one of the gravest and led
his eyes towards a meaningful and appropriate punishment in this regard. The reason was obvious
which was taken into account, the need to clean the professional person prone to such activity and
prevent to acquire the impression of immunity from any punitive measures.

In my opinion punishment to debar the delinquent advocate from practicing in any court or authority
or person in India is proportionate and appropriate. As the breach was of such a serious nature that it
did not remained only for a temporary period instead it also included a determination to forge an
affidavit in the name of the client and thereby producing in order to deceive the Disciplinary
Committee to believe him over it. Such form misconduct really requires an effective filtering process
to bring allay on such corrupt practices and keep up necessary professional standards in furtherance.
All that which needs to emphasis is upon the Disciplinary Committee of Bar Council, who is
divested to take measures in nefarious or detestable activities. The same must be done in consonance
with the Advocate Act, 1961 and creating deterrence as a prominent consideration. In each case, it
must be ensured that the professional norms and ethics shall not be compromised at all.

Thanks

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 BIBLIOGRAPHY

A. Act:

(1) The Advocates Act, 1961, Bare Act, Universal Law Publishing.

B. Articles:

(1) Liability of the legal practitioners for professional negligence: a critical analysis , Jeet
Singh Mann, Asst. Professor (Law), National Law University, Delhi.

(2) Professional Misconduct by Advocates: A Portrait of Malpractices, Abhijit Sinha & B.

Shravya, School of Law, UPES Dehradun.

(3) Professional Misconduct by Advocates in India: A Critical Analysis, Trishala Singh,

LLM, Amity University Noida.

C. Websites:

(1). http://www.legalserviceindia.com

(2). http://www.scribd.com

(3). http://www.scconline.com

(4). http://www.indiankanoon.com

(5). http://www.latestlaws.com

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