- INTRODUCTION
A lawyer’s profession is meant to be an honourable or divine profession. Each and every profession at its core has values, the foremost being professional ethics that must be followed by every member. However, it is commonly observed that human being in any profession is susceptible to fallacy. Hence, the act of miscount is quite common and this does not exclude the profession of advocacy.
The acts done by a person which are questionable or unfit through the lens of ethics and good conscience in that particular field are considered to be misconduct. Black’s Law dictionary defines ‘Misconduct’ as “A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour”. Misconduct has to be considered with wide interpretation extending to its meaning under natural law. However, the Advocates Act, 1961 does not define ‘misconduct’ rather uses the term ‘unprofessional conduct’.
The case arises from another dispute in court wherein one Srikrishan Das died leaving behind his property which was claimed by Adv. PD Gupta’s client Vidyawati on pretext of being the deceased’s sister, the complainant Ram Murti and two others through Wills. The properties in dispute of this case were bought through registered sale deed by the Advocate, the appellant, and his son-in-law from Vidyawati, his client and then sold the property at a much higher price through registered sale deed.
The claimant in the property dispute Ram Murti filed complaint against Adv, Gupta for misconduct at Delhi, the advocates place of practice. The Advocate filed an appeal to the order of the Disciplinary Committee (DC) of Bar Council of India holding him guilty of misconduct and sentencing him to suspension of one year under Section 35 of the Act. The Bare Council of Delhi’s DC was unable to dispose of the complaint within a year of it being filed under Section 38 of the Act.
ISSUES
- Whether the act of buying the property in dispute of the client, misconduct on the part of the Advocate?
- Whether the sentence of one year of suspension disproportionate to his guilt?
LEGAL PROVISIONS APPLIED
- Section 35, Advocate Act, 1961: Punishment of advocates for misconduct,
- Section 36B, Advocate Act, 1961: Disposal of disciplinary proceedings
- Section 38, Advocate Act, 1961: Appeal to the Supreme Court
- Section 276, Indian Succession Act, 1925: Petition to Probate
FACTS AND ANALYSIS
The case was initially transferred under Section 38 of the Advocates Act, 1961 from DC of Bare Council of Delhi to that of BCI because of the inability of the former to dispose it of within one year of the complaint being filed as per Section 36B. The Advocate was found liable of professional misconduct under Section 35 of the Act and the Appeal preferred before Supreme Court.
The Advocate PD Gupta bought property from his client which was in dispute in an ongoing case under Section 276 of the Indian Succession Act and in which he was representing his client. Thus, the first point of misconduct is the fact that the Advocate bought property from a woman whose right over the property was still in dispute and moreover, the properties where the subject matter of the dispute. The Advocate bought one property in his name and other was bought by his son in law, which incidentally was the property for which his father was a tenant. The Advocate did not bring the sales on record in the suit for disputed properties. However, VidyaWati’s request for construction on property was sanctioned by the Municipality even thought she was yet to be granted declaration of title. Further, the Appellant and his son-in-law payed the consideration quite flexibly through the year on the sale deed which made no mention civil suits on the property sold.
The Advocate filed an affidavit of Mr. Bansal, who was the father of the heir to VidyaWati’s property, also her General Attorney wherein he stated that the sales were made to the Appellant and his son-in-law without any pressure and through free will. The Appellant contended that the complainant himself had no title and was motivated against him. Further, he contended that the property bought by him were sold and has no concern with those property. The Advocate had also contended that no clear charges were made in the original proceedings and an interested parties’ complainant can deter the lawyers to act freely for their clients.
The court took into observation the fact that the Advocate knew Vidya Wati even when Srikrishan Dass was alive and further the contradicting statements of VidyaWati on her relationship with Dass as being is sister and half sister have an inference to question her very existence and thus cast doubt on Appellant who is her family lawyer. The point that the Appellant was aware of the property being in dispute and even purchased it at a below par value. Further, the flexibility for payments shows that the client and the Advocate knew each other very well. These facts lead to the decision of BCI.
The BCI made observed that Advocates can exert pressure on their clients and have started to make bargains on success or contracting with their clients. These activities are not barred but buying a doubtful and disputed property after being aware of the law himself is quite out of the ordinary. Thus, the decision to hold the Appellant liable for misconduct and subsequent suspension.
The Supreme Court observed that the contention of the Appellant had no basis. The contention of charges not being clear and not being in possession of the property are not valid. The charges are simple and the fact that he does not own the property does not alleviate the misconduct of buying the disputed property in the first place. The Court stated “A lawyer owes duty to be fair not only to his client but to the court as well as to the opposite party in the conduct of the case. Administration of Justice is stream which has to be kept pure and clean. It has to be kept unpolluted. Administration of Justice is not something which concern the Bench only. It concerns the Bar as well. Bar is the principal ground for recruiting Judges. No one should be able to raise a finger about the conduct of a lawyer.[1]”
The act of buying the disputed property in the present case raises serious questions on his professional conduct and bought disrepute to the administration of justice. Thus, the decision of the BCI was accepted and reiterated.
REFERENCE OF OTHER RELEVANT PRECEDENT
- The Supreme Court in Noratanmal Chaurasia v. M.R. Murli [2], held that “misconduct is not defined under the Advocates Act, 1966 but misconduct envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute misconduct and indiscipline which, however, is wide enough to include wrongful omission or commission, whether done or omitted to be done intentionally or unintentionally”[3].
- The DC while adjudicating on Prof. Krishanraj v. Vishwanth D. Mukashikar[4], the fact that the Advocate in disgrace had made delay in filing the suit and even the interim application causing consequent loss to the client, held him guilty of misconduct.
- A landmark case in matters of advocate misconduct is the Suo Moto Enquiry v. Nand Lal Balwani [5], wherein the Respondent Advocate hurled shoes and shouted slogans in the Supreme Court of India, which lead to both contempt and misconduct proceedings against him. The Supreme Court found him to be guilty of contempt and the BCI found him guilty of misconduct and removed him from the roll.
- Sambhu Ram Yadav v. Hanuman Das Khatry [6], an Advocate of BCI of Rajasthan who was appearing in a suit before a particular judge, stated that the judge asked for bribe and attempted to influence the judge to give a favourable order. The DC declared him “unfit to be a lawyer”. The SC observed that the legal profession is not a trade or business. The advocates have a duty to sustain the integrity of the profession and to discourage corruption in pursuance that justice is secured.
- Smt. Sudesh Rani v. Munish Chandra Goel [7], the respondent advocate filed suits for the eviction of the tenants by suppressing the fact that an earlier compromise decree was passed wherein the tenants were declared as owners of the said property. The respondent advocate suppressed the material facts since his wife and he were involved in the compromise of the suits. The advocate was found guilty of misconduct and suspended for two years.
CONCLUSION
The case in analysis relates to at its core the duty of the advocate to not indulge in subject matters of dispute for personal gain. A lawyer is a man with great knowledge of the law and should understand which acts of his could be detrimental and increase complexity of the suits and disputes at hand.
Thus, it is pertinent that a lawyer should always keep in mind the guidelines of the BCI and also act in an honourable manner while carrying out his profession. The profession obliges the advocate to uphold rule of law and support smooth functioning of public justice system. It is integral to have integrity in abundance and nothing should be done that could erode his credibility.
In all professional roles, an advocate should be meticulous and should be in line with the requirements of the law. Any violation of the principles of professional ethics is as unfortunate but more importantly unacceptable.
References:
1. Id.
2. Noratanmal Chaurasia v. M.R. Murli, AIR 2004 SC 2440
3. Id
4. Prof. Krishanraj v. Vishwanth D. Mukashikar, BCI Tr. Case No. 49/1993
5. Suo Moto Enquiry v. Nand Lal Balwani, (1999) 2 SCC 743
6. Sambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001SC 2509
7. Smt. Sudesh Rani v. Munish Chandra Goel, (2002) 1 UPLBEC 654
About author –
This case analysis is authored by Shreya Sharma, Third year student of BBA LLB at Symbiosis Law School, Hyderabad.
