TMI Blog1983 (10) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... s practising in the two courts of Sub- Divisional Magistrates in the Collectorate of Poona alleging various acts of professional misconduct against the appellant P.D. Khandekar and one A.N. Agavane. The proceedings stood transferred to the Bar Council of India under s. 36B of the Act. The Disciplinary Committee of the Bar Council of India by its order dated April 23, 1976 held both the appellant and A.N. Agavane guilty of professional misconduct and directed that the appellant be suspended for a period of four months from June 1, 1976 and Agavane for a period of two months therefrom. This Court by its order dated September 24, 1976 admitted the appeal and stayed the operation of the suspension of order. First as to the facts. The Complainants alleged various acts of professional misconduct against the appellant and Agavane. According to them, the appellant and agavane sometimes impersonated as other advocates for whom the briefs were meant and at times they directly approached the clients and adopted questionable methods charging exorbitant fees. The State Bar Council referred to four specific charges relating to them, two of impersonation as A.D. Ghospurkar and N.L. Thatte and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and registration charges and they would instead have the work done within an amount of Rs. 50 which was finally settled at Rs.45. The charges levelled against the appellant and Agavane are serious enough and if true in a case like the present, the punishment has to be deterrent, but the question still remains whether the charges have been proved. The appellant virtually pleads that the case against him is a frame-up. As to the incident of January 7, 1974, the appellant pleads that the affidavit sworn by Potdar and Smt. Dhavale was prepared on their instructions as they represented that they had divorced their respective spouses and expressed that they wanted to marry each other on that very day and leave Poona. His case is that they represented that the priest was insisting upon an affidavit as regards their divorce as a precaution before performing their marriage and therefore they wanted to swear an affidavit to that effect. Regarding the incident of February 22, 1974, there was a complete denial that the appellant drew up an affidavit containing a recital that Smt. Sonubai had made a gift of her lands to her grand-daughter Smt. Mangala which he handed over to her on receipt of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n mere conjectures and surmises. The case against the appellant and Agavane rests upon professional misconduct and not any other conduct. The question is whether there was any evidence upon which the Disciplinary Committee could reasonably find that they have been guilty of 'professional misconduct, within the meaning of sub-s. of s. 35 of the Act. The test of what constitutes "grossly improper conduct in the discharge of professional duties" has been laid down in many cases. In the case of in re Solicitor Ex parte the law Society, Darling, J. adopted the definition of "infamous conduct in a professional respect" on the part of a medical man in Allinson v. General Council of Medical Education Registration, applied to professional misconduct on the part of a Solicitor, and observed: "If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General medical Council to say that he has been guilty of 'infamous conduct in a professional respect'." The Privy Council approved of the defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... An advocate stands in a loco parentis towards the litigants and it therefore follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches the advocate for succour in times of need. The members of the legal profession should stand free from suspicion. In the matter of P. An Advocate,(1) Page, C.J. in an oftquoted passage after extolling the ideals that an advocate ought to set before him, and the ancient and noble conception of his office, observed: "From this conception of the office of an advocate it follows that the public are entitled to receive disinterested, sincere and honest treatment and advice from the advocates to whom they repair for counsel and succour in their time of need; and it is for this reason that Lord Mansfield laid down, and the Court has always insisted, that members of the legal profession "should stand free from all suspicion"." Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession. For an advocate to act towards his client otherwise than with utmost go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings under the Hindu Marriage Act, 1955. They both approached the appellant and Agavane and wanted their legal advice and stated that they would like to get married and leave Poona on the same day or, in other words, they were in a hurry to get married. Ex. C-13 which inter alia states: "We have today married at Poona as per Hindu rites" was drawn up by the appellant and Agavane and signed by both the parties before the Sub-Divisional Magistrate in English after reading the contents. The recital in the affidavit that they got married at Poona on January 7, 1974 according to Hindu rites must have been made on their instructions. They were both anxious to leave Poona and brought a document styled as a marriage certificate obtained under s. 5 of the Bombay Registration of Marriages Act, 1953 under which even Hindu marriages have to be registered. The document was signed by both Potdar and Smt. Dhavale and also attested by one Gangadhar Laxman Jamkhedkar who claimed to have acted as the priest and said to have solemnised the marriage. There is nothing unprofessional for an advocate to draft an affidavit on the instructions of his client. The testimony of Smt. Dhavale shows that she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar properly. She further unequivocally admitted that she never approached the appellant at any time for any work. It is difficult to support the charge of professional misconduct against the appellant on such evidence. It must accordingly be held that the Disciplinary Committee of the Bar Council of India erred in holding the appellant and Agavane guilty of professional misconduct because the evidence adduced by the complainants falls short of the required proof, but the circumstances appearing do give rise to considerable suspicion about the manner in which they have been conducting their affairs, which defects from the norms of professional ethics. May be, the complainants were not actuated from a purely altruistic motive in lodging the complaint but that does not fully exonerate the appellant and Agavane of the way they have been carrying on their activities. It appears from the order of the Disciplinary Committee that some 12 to 14 advocates practising in the two Courts of the Sub Divisional Magistrates in the Collectorate of Poona had formed an association called the Poona Collectorate Bar Association, the purpose of which was that the entire work in the Collectorate shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the complainants: "This means that the purpose of the Association was to appoint certain touts who would get work for their members and then the work will be distributed among the members. Touting or appointing touts is not consistent with the rules framed under the Advocates Act and such practice would be considered professional misconduct but that is exactly what the Bar Association referred to above intend to do." We are informed that disciplinary proceedings have since been initiated against the complainants and therefore we refrain from expressing any opinion on the impropriety of their conduct. The Preamble to Chapter II Part VI of the Rules lays down that an advocate shall at all times comport himself in a manner befitting his status as an officer of the Court privileged member of the community and a gentleman. Rule 36 of these rules provides that an advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications etc. It is a well recognized rule of etiquette in the legal profession that no attempt should be made to advertise oneself or solicit work directly or indirectly. In his 'Bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof provide that they may receive any grants, donations, gifts or benefactions for the above purposes, which shall be credited to the appropriate fund or funds under that sub- section. The Bar Council of India and the State Bar Councils hold very large funds, may be to the tune of rupees one crore and above, but no positive steps have been taken in organizing the legal profession and safeguarding the interests of lawyers in general, particularly the junior members of the bar. It is with a deep sense of anguish that one finds the legal profession in a state of total disarray and for the majority it is a continuous struggle for existence. The hardest hit are the junior members. We expect that the matter will receive the attention that it deserves. In the result, the appeal partly succeeds and is allowed. The order of the Disciplinary Committee of the Bar Council of India holding the appellant and A.N. Agavane guilty of professional misconduct is set aside. The proceedings drawn against them under sub-s. (1) of s. 35 of the Advocates Act, 1961 are dropped. We hope and trust that they would not by their conduct or behaviour prove themselves to be unworthy to remain as members of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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