Major Judgments of the Supreme Court on Professional Misconduct

Proposition. The limits of section 35, and the definitions.

Group two: misconduct towards the client

Harish Chandra Tiwari v. Baiju

Harish Chandra Tiwari v. Baiju, AIR 2002 SC 548, (2002) 2 SCC 67, decided 8 January 2002, K.T. Thomas and S.N. Phukan JJ.

Facts. Compensation of Rs 8,118 for a client described as an old, helpless, poor illiterate person was deposited in court. The advocate withdrew it on 2 September 1987 and neither paid it over nor told the client. The Bar Council of India suspended him for three years.

Held. The Supreme Court enhanced the punishment on his own appeal to removal from the roll, misappropriating a poor client's money being among the gravest professional misconducts.

Proposition. Misappropriation of client money attracts removal, and the size of the sum is not the measure.

Bar Council of Andhra Pradesh v. Kurapati Satyanarayana

Bar Council of Andhra Pradesh v. Kurapati Satyanarayana, AIR 2003 SC 175, (2003) 1 SCC 102, decided 15 November 2002, V.N. Khare and Ashok Bhan JJ.

Facts. An advocate received money on his client's behalf and did not account for it or pay it over.

Held. Receiving a client's money and failing to account for it or return it is professional misconduct.

Proposition. Failure to account is misconduct in itself.

Prahlad Saran Gupta v. Bar Council of India

Prahlad Saran Gupta v. Bar Council of India, AIR 1997 SC 1338, (1997) 3 SCC 585, decided 26 February 1997, S.C. Agrawal J.

Facts. An advocate acting for a decree-holder retained Rs 1,500 received on the client's behalf in his own hands for a considerable period.

Held. Retaining the client's money without justification was conduct not befitting an advocate. A reprimand was substituted for the suspension.

Proposition. Misconduct without proved dishonesty, and the lightest of the four punishments.

R.D. Saxena v. Balram Prasad Sharma

R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, decided 22 August 2000, K.T. Thomas J.

Facts. On termination of his retainership the advocate refused to return the client bank's files until his bill of Rs 97,100 was settled. The Bar Council of India debarred him eighteen months, fined him Rs 1,000 and directed return of the files.

Held. An advocate has no lien over the client's litigation papers. Files are not goods within section 171 of the Contract Act, keeping them is not goods bailed, and "goods" bears its Sale of Goods Act meaning.

Proposition. No lien; the file must be returned whatever the fee position.

Chandra Shekhar Soni v. Bar Council of Rajasthan

Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, (1983) 4 SCC 255, decided 20 July 1983, A.P. Sen, E.S. Venkataramiah and R.B. Misra JJ.

Facts. The advocate accepted the accused's brief having appeared for the complainant in the same criminal case; and took Rs 300 on a promise to secure a favourable radiologist's report, writing "Your amount is lying with me... Please, do his work and it should be done positively in his favour."

Held. Changing sides is clearly contrary to rule 33 and it is unprofessional to represent conflicting interests except by express consent of all concerned after full disclosure. Taking money from a client to give a bribe is grave professional misconduct. On a section 38 appeal the Court will not as a general rule interfere with concurrent findings of fact unless based on no evidence or on conjecture. Suspension reduced from three years to one.

Proposition. Conflict of interest, bribery, the restraint on findings of fact, and mitigation for inexperience.

P.D. Gupta v. Ram Murti

P.D. Gupta v. Ram Murti, AIR 1998 SC 283, decided 8 July 1997, S.C. Agrawal and D.P. Wadhwa JJ.

Facts. An advocate purchased from a client property that was the subject matter of a dispute in which he was acting, and sold it at a profit.

Held. An advocate must not purchase property that is the subject of litigation in which he is engaged; it sets his interest against his client's and against the administration of justice.

Proposition. No acquiring an interest in the subject matter.

V.C. Rangadurai v. D. Gopalan

V.C. Rangadurai v. D. Gopalan, AIR 1979 SC 281, (1979) 1 SCC 308, decided 4 October 1978, V.R. Krishna Iyer, D.A. Desai and A.P. Sen JJ.

Facts. Two promissory notes entrusted by an old deaf client and his wife; the advocate let limitation expire and then deceived them about it.

Held. Misconduct. The relation of advocate and client is one of trust, the profession's standards are a trustee's, and the profession is a partner in the administration of justice rather than a trade. The period of suspension was reduced, punishment being treated as capable of being reformative.

Proposition. The fiduciary character of the relationship, and reformative punishment.

John D'Souza v. Edward Ani

John D'Souza v. Edward Ani, AIR 1994 SC 975, (1994) 2 SCC 64, decided 17 December 1993, S.R. Pandian and P.B. Sawant JJ.

Facts. An advocate who had drawn a will and held it refused to return it to the person entitled, relying on instructions from the testatrix.

Held. The case turns on what an advocate holding a client's document may do with it and to whom the duty runs after the client's death, examined on the material before the disciplinary committee.

Proposition. A duty to a client is not extinguished by convenience.

Group three: misconduct towards the court

Shambhu Ram Yadav v. Hanuman Das Khatry

Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509, (2001) 6 SCC 1, decided 26 July 2001, K.T. Thomas and Y.K. Sabharwal JJ.

Facts. A letter to the client saying the judge accepted bribes and asking Rs 10,000 to have the suit decided in his favour. Two years' suspension by the State Bar Council; enhanced to removal by the Bar Council of India on 31 July 1999; reduced to a reprimand by that committee on review.

Held. The review was set aside and removal restored. The order had been reviewed on non-existent grounds, every factor having been already on record and considered, and the power of review had not been exercised on the well settled principles governing it. The legal profession is not a trade or business but a noble profession, and its credibility depends on the conduct of its members.

Proposition. Holding out that a judge can be bought is misconduct of the gravest kind, and the limits of the power of review.

Hikmat Ali Khan v. Ishwar Prasad Arya

Hikmat Ali Khan v. Ishwar Prasad Arya, AIR 1997 SC 864, (1997) 3 SCC 662, decided 28 January 1997, S.C. Agrawal and Sujata V. Manohar JJ.

Facts. The advocate assaulted his opponent with a knife in a court room during the lunch interval on 18 May 1971, a pistol shot also being said to have been fired; he was convicted under section 307 and section 25 of the Arms Act and sentenced to three years' rigorous imprisonment.

Held. The conduct made him unworthy of remaining in the profession; the appropriate order was removal from the roll and not suspension.

Proposition. Section 35 reaches conduct that is not professional work, and when removal rather than suspension is right.

D.P. Chadha v. Triyugi Narain Mishra

D.P. Chadha v. Triyugi Narain Mishra, AIR 2001 SC 457, (2001) 2 SCC 221, decided 5 December 2000, R.C. Lahoti J.

Facts. An advocate was party to a course of conduct by which the court was misled.

Held. A lawyer must not hesitate in telling the court the correct position of law and must not be a party to misleading it.

Proposition. The duty of candour to the court.

In Re: Sanjiv Datta

(1995) 3 SCC 619, 1995 Cri LJ 2910, decided 19 April 1995, P.B. Sawant and B.P. Jeevan Reddy JJ.

Facts. Contempt proceedings arising from the conduct of officers and of counsel in relation to proceedings before the Court.

Held. The judgment contains the Court's statement of the standards the legal profession is expected to maintain and of the consequences of their decline, the profession being a solemn and serious occupation and a noble calling whose members are expected to maintain a high standard of probity.

Proposition. The standard expected of the profession.

Group four: the boundary of the jurisdiction

Supreme Court Bar Association v. Union of India

Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, (1998) 4 SCC 409, decided 17 April 1998, a Constitution Bench of five judges, judgment by Dr A.S. Anand J.

Worked in full in chapter [What the Supreme Court May Not Do: Supreme Court Bar Association and the Limits of Article 142]. Proposition: the disciplinary jurisdiction belongs to the Bar Councils, and Article 142 does not let the Court take over a statutory body's function.

Ex-Capt. Harish Uppal v. Union of India

Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, (2003) 2 SCC 45, decided 17 December 2002, a Constitution Bench.

Worked in chapter [Is the Right to Practise a Fundamental Right, and May Advocates Strike?]. Proposition: lawyers have no right to strike or to boycott, not even a token strike, and an advocate holding a vakalatnama must attend.

Bar Council of Maharashtra v. M.V. Dabholkar

Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1976 SC 242, (1976) 2 SCC 291, decided 3 October 1975, V.R. Krishna Iyer J in a Bench of the Supreme Court.

Facts. Advocates practising in the criminal courts stationed themselves at the entrance to the Magistrates' Courts, watched for litigants arriving, and rushed at them in a scrimmage to snatch briefs.

Held. Charged under section 35(1), the conduct was dealt with as soliciting contrary to the standards of the profession.

Proposition. Soliciting work is misconduct; the other end of the problem is rule 36 and section 45A.

A revision table

A worked example

A question asks: "Trace, through the decisions of the Supreme Court, the approach to punishment in cases of professional misconduct."

Open with the framework. Four orders under section 35(3), and sections 37(2) and 38 allow the appellate body to vary the punishment, subject to a hearing.

Show the range with cases.

• Reprimand: Prahlad Saran Gupta, Rs 1,500 retained without justification.
• One year, reduced from three: Chandra Shekhar Soni, an inexperienced junior, 1971 incidents, though the Court said the punishment in such a case has to be deterrent.
• Eighteen months as imposed below: R.D. Saxena, withholding the client's files.
• Removal: Harish Chandra Tiwari, Rs 8,118 of a poor client's compensation, enhanced from three years; Hikmat Ali Khan, assault with a knife and a conviction under section 307; Shambhu Ram Yadav, the bribe letter, restored after an unlawful review.

Draw out the factors. Gravity of the breach of trust rather than the sum (Tiwari); standing at the Bar can aggravate (Shambhu Ram Yadav) or inexperience mitigate (Chandra Shekhar Soni); punishment may be reformative (Rangadurai); and deceit or a false defence aggravates (Rangadurai, Chandra Shekhar Soni).

Close with the check. Findings of fact are not disturbed lightly where concurrent (Chandra Shekhar Soni), but punishment is fully open, and the ultimate limit on the Court's power is Supreme Court Bar Association.

Quick revision

Learn the cases by proposition, using the table above. The four groups are: what misconduct means (Dastane, Noratanmal); misconduct towards the client (Tiwari, Kurapati Satyanarayana, Prahlad Saran Gupta, R.D. Saxena, Chandra Shekhar Soni, P.D. Gupta, Rangadurai, John D'Souza); misconduct towards the court (Shambhu Ram Yadav, Hikmat Ali Khan, D.P. Chadha, Sanjiv Datta); and the boundary of the jurisdiction (Supreme Court Bar Association, Harish Uppal, Dabholkar).

Test yourself

1. Which case defines misconduct, and how? N.G. Dastane, which records that misconduct in section 35 is not defined, that the section uses the expression "misconduct, professional or otherwise", that the word is a relative term to be considered with reference to the subject matter and context, and that it literally means wrong conduct or improper conduct. Noratanmal adds that it implies a wrongful intention and not a mere error of judgment, and excludes negligence or carelessness.

2. Name the three cases in which removal from the roll was the outcome, and the conduct in each. Harish Chandra Tiwari, for withdrawing and keeping Rs 8,118 of a poor illiterate client's compensation; Hikmat Ali Khan, for assaulting his opponent with a knife in a court room and being convicted under section 307; and Shambhu Ram Yadav, for writing to his client that the judge took bribes and asking for Rs 10,000, where removal was restored after an unlawful review.

3. Which case is authority that there is no lien on a client's papers, and on what reasoning? R.D. Saxena v. Balram Prasad Sharma, on the reasoning that litigation files are not goods within section 171 of the Contract Act, that an advocate keeping files does not amount to goods bailed, and that "goods" there bears its meaning in the Sale of Goods Act.

4. Which case supplies the restraint on interfering with findings of fact? Chandra Shekhar Soni v. Bar Council of Rajasthan, which records that in a section 38 appeal the Court would not as a general rule interfere with concurrent findings of fact of the two disciplinary committees unless based on no evidence or proceeding on mere conjectures and unwarranted inferences.

5. Give two cases where the punishment was reduced and say why. Chandra Shekhar Soni, where three years' suspension was reduced to one because the advocate was an inexperienced junior and the incidents were of 1971; and Prahlad Saran Gupta, where a reprimand was substituted for a suspension because the misconduct was the retention of Rs 1,500 without justification rather than proved dishonesty.

6. Which case decides the outer limit of the Supreme Court's own power in this field? Supreme Court Bar Association v. Union of India, in which a Constitution Bench held that the Court cannot, while punishing an advocate for contempt, suspend his licence to practise, because the disciplinary jurisdiction is conferred by the Advocates Act on the Bar Councils and Article 142 does not permit the Court to take over the role of statutory bodies and perform their functions.