Misconduct Towards the Court: Falsehood, Fabrication and Advising a Bribe

Held. The Supreme Court set the review aside and restored the removal. The original order had been reviewed on non-existent grounds: every factor relied on in the review was already on the record and had been considered when the order of 31 July 1999 was passed, and the power of review had not been exercised by applying the well settled principles governing the exercise of such power.

The judgment opens with the passage worth quoting: the legal profession is not a trade or business but a noble profession, its members must not encourage dishonesty and corruption, the credibility and reputation of the profession depend on the manner in which its members conduct themselves, and there is a heavy responsibility on those in whom the Advocates Act vests the duty to take disciplinary action when that credibility comes under a cloud.

Note carefully what was misconduct. Not paying a bribe, and not any proof that money changed hands. Writing the letter was enough. The vice is holding out to a client that the outcome can be bought.

Chandra Shekhar Soni v. Bar Council of Rajasthan

Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, is worked in chapter [Misconduct Towards the Client: Money, Papers and Changing Sides] for its first charge. Its second charge belongs here.

Facts. The advocate procured a complainant's brief on a fee of Rs 300 on the representation that he would secure a favourable radiologist's report showing a fracture of the skull. He wrote to the radiologist: "I am sending the man to you with X-ray plate. Your amount is lying with me. I will come to Jalore in the evening and see you. Please, do his work and it should be done positively in his favour." A second report recording "evidence of fracture of the skull" followed the first, which had found nothing abnormal. His defence that the letter was about a newspaper advertisement was disbelieved, and the Court noted complete lack of candour in that he had procured false evidence to save himself.

Held. There is a long catena of decisions laying down that offering a bribe, giving a bribe, or taking money from the client for the purpose of giving a bribe, amounts to grave professional misconduct. The Court also invoked the Preamble to Chapter II and rule 4, which requires an advocate to use his best efforts to restrain and prevent his client from resorting to sharp and unfair practices.

Fabricating or procuring false material

Chandra Shekhar Soni is also the leading illustration of this, because the medical report was procured, not merely relied on.

The rules are rule 4 of Section I, which requires the advocate to restrain the client from unfair practices and forbids him to be a mere mouth-piece, and the general duty of candour. The aggravating feature the Court identified was that when the charge was made he produced false evidence in his defence, which is a second misconduct on top of the first.

Misleading the court

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

Facts. An advocate was found to have been party to a course of conduct by which the court was misled in the conduct of proceedings.

Held. A lawyer must not hesitate in telling the court the correct position of law and must not be a party to misleading it. The judgment sets out at length the standard of candour an advocate owes the court and the consequences of falling below it.

This is the fullest modern statement of the duty of candour, and it is the case to cite where the facts are that the court was told something untrue rather than that a document was forged.

Abusing the process of the court

N.G. Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028, is worked in chapter [What Professional Misconduct Is: Section 35 and the Words 'Or Otherwise'] and belongs here too.

Held. An advocate abusing the process of court is guilty of misconduct. Where witnesses are present in court for examination, the advocate has a duty to see that their examination is conducted. Seeking adjournments to postpone the examination of witnesses who are present, without making other arrangements to examine them, is a dereliction of the advocate's duty to the court.

The Court's reason is worth having: witnesses come because they have no other option, they are responsible citizens with their own work, and they cannot be treated as less respectable people to be told to come again and again to suit the advocate's convenience.

The standard the Court expects

In Re: Sanjiv Datta, (1995) 3 SCC 619, 1995 Cri LJ 2910, decided 19 April 1995 by P.B. Sawant and B.P. Jeevan Reddy JJ, contains the Supreme Court's statement of the standards the legal profession is expected to maintain and of the consequences of a decline in them, in the passage beginning with the observation that the legal profession is a solemn and serious occupation and a noble calling in which its members are expected to maintain a high standard of probity.

It is the passage most often quoted for the proposition that the profession is not a trade, and it is worth quoting once, accurately, rather than at second hand.

Where this category meets contempt

One act can be both misconduct under section 35 and criminal contempt under section 2(c) of the Contempt of Courts Act 1971, and the two are tried by different bodies under different Acts.

That overlap, and the limit the Supreme Court placed on its own powers in Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, are dealt with in chapter [What the Supreme Court May Not Do: Supreme Court Bar Association and the Limits of Article 142] and in Module IV.

A worked example

Prakash appears for a defendant in a money suit. Four things happen.

He tells his client that the judge is approachable and asks for Rs 50,000 to arrange matters. No money is paid and nothing is done.

That is Shambhu Ram Yadav on all fours. The misconduct is complete on the holding out, and the fact that no money passed is no defence. On that case the punishment ordered was removal from the roll.

He obtains a valuation report by paying the valuer to write a higher figure. That is Chandra Shekhar Soni's second charge: taking money from a client to give a bribe, and procuring false material. The Court there recorded a long catena of decisions holding this grave professional misconduct.

Confronted, he produces a witness to say the payment was for something else, and that account is disbelieved. That is the aggravation the Court identified in Chandra Shekhar Soni: a complete lack of candour, procuring false evidence to save himself.

Separately, he seeks four adjournments while the plaintiff's witnesses wait outside court. N.G. Dastane: abusing the process of court is misconduct, and seeking adjournments to postpone the examination of witnesses who are present is a dereliction of his duty to the court.

Change one fact. Suppose Prakash never suggested a bribe, but told the court a judgment said something it did not, because he had not read it. That is D.P. Chadha territory in principle, but carelessness is not the same as being a party to misleading the court; the question is whether his professional brethren would call it disgraceful or dishonourable. If he corrects it at once, plainly not. If he lets the court act on it, the answer changes.

What beginners get wrong

No money need change hands. Shambhu Ram Yadav turned on a letter.

Long standing is not mitigation. The Bar Council of India treated fifty years at the Bar as making the conduct worse, and the Supreme Court restored removal.

A client's instruction is no defence. Rule 4 requires the advocate to restrain the client and to refuse to act if he persists.

Defending oneself dishonestly is a separate wrong. Producing false evidence at the inquiry aggravated the punishment in Chandra Shekhar Soni.

Misconduct towards the court is not confined to lying. Abusing the process, as in N.G. Dastane, is enough.

Quick revision

• Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509: a letter to the client saying the judge takes bribes and asking Rs 10,000 to get the suit decided in his favour. State Bar Council two years; Bar Council of India enhanced to removal on 31 July 1999; Bar Council of India then reviewed and reduced to a reprimand; the Supreme Court set the review aside and restored removal, the review having been made on non-existent grounds. Opening proposition: the legal profession is not a trade or business but a noble profession.
• Chandra Shekhar Soni, AIR 1983 SC 1012, second charge: Rs 300 taken on a promise to secure a favourable radiologist's report, and a letter procuring it. Offering, giving, or taking money from a client to give a bribe is grave professional misconduct, on a long catena of decisions. Aggravated by procuring false evidence in defence.
• D.P. Chadha v. Triyugi Narain Mishra, AIR 2001 SC 457: a lawyer must not hesitate to tell the court the correct position of law and must not be a party to misleading it.
• N.G. Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028: abusing the process of court is misconduct; adjournments to postpone witnesses present in court are a dereliction of duty.
• In Re: Sanjiv Datta, (1995) 3 SCC 619: the Supreme Court's statement of the standards the profession must maintain.
• One act can be both misconduct under section 35 and criminal contempt under section 2(c).

Test yourself

1. Was any bribe paid in Shambhu Ram Yadav? No. The advocate wrote to his client saying the judge accepted bribes and asking for Rs 10,000 to have the suit decided in his favour, and the money was never sent. The misconduct was complete on the writing of the letter.

2. What did the Supreme Court hold about the Bar Council of India's review in that case? That the original order had been reviewed on non-existent grounds, since every factor relied on in the review was already on the record and had been considered when the order of 31 July 1999 was passed, and that the power of review had not been exercised by applying the well settled principles governing it. The order removing his name was restored.

3. State the proposition on bribery from Chandra Shekhar Soni. That there is a long catena of decisions laying down that offering a bribe, giving a bribe, or taking money from the client for the purpose of giving a bribe amounts to grave professional misconduct.

4. How did the advocate's defence make his position worse in that case? He put forward a false plea that the incriminating letter concerned a newspaper advertisement and examined witnesses to support it. The Court recorded a complete lack of candour in that he had, in a frantic effort to save himself, procured false evidence.

5. Give an instance of misconduct towards the court involving no falsehood at all. Seeking repeated adjournments to postpone the examination of witnesses who are present in court, without making other arrangements to examine them, which N.G. Dastane held to be abusing the process of court and a dereliction of the advocate's duty to the court.

6. Why are punishments in this category heavier than for comparable conduct towards a client? Because the advocate is an officer of the court and the administration of justice depends on the court being able to rely on what advocates tell it. A judge cannot verify every authority, document or instruction, so misleading the court damages the system itself and not only one party.