BarHacker: Professional Misconduct. Find out the leading cases on professional misconduct and brace your concepts by solving an exhaustive quiz.
- Noratanmal Chaurasia vs. M.R. Murli (2004) 5 SCC 689– The Supreme court has held that misconduct has not been defined in 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.
- Narain Pandey vs. Pannalal Pandey (2013) 11 SCC 435 – An advocate who is found guilty of having filed vakalatnamas without authority and then filing false and fictitious compromises on behalf of the client without any authority deserves punishment proportionate to the degree of misconduct. Such punishment must meet two objectives- deterrence and correction. The Court referred to the Preamble of the BCI Rules- Chapter II while adjudging the misconduct.
- Shambhuram Yadav vs. Hanumandas Khatri AIR 2001 SC 2509- The lawyer suggested that his client give bribe to the judge to get the suit decided in his favour. The Supreme Court held the lawyer guilty of professional misconduct. (Violation of Rule 3 and 4 of BCI Rules- – Chapter II)
- Bar Council of Andhra Pradesh vs. Kurapati Satyanarayana AIR 2003 SC 178– Lawyer misappropriated his client’s money. BCI acquitted him on the ground that there was no intention. Supreme Court held this decision of BCI to be “unfounded and perverse” and lacking the serious thought which was required to be given to the disciplinary committee of the BCI in the discharge of quasi-judicial functions while probing into such grave instances. (Rule 23 and 25 of the BCI Rules- Chapter II)
- Harish Chandra Tiwari vs. Baiju 2002 (2) SCC 67- Misappropriation of client’s money is a grave misconduct to be committed by a legal practitioner, and must be punished accordingly under the Advocates Act. (Rule 23 and 25 of the BCI Rules- Chapter II)
- Smt. Siya Bai vs. Sita Ram BCI Tr. Case No. 8/1987– The advocate withdrew the decretal amounts paid and did not make the payment to the client, in violation of Rule 27 of the BCI Rules on Professional Ethics. The Disciplinary Committee of the Bar Council of India ordered the advocate to refund the money to the complainant along with the 10% interest per annum and also ordered suspension of advocate for a period of one year.
- In Re: An Advocate vs. Unknown AIR 1961 Ker 209- It is the imperative duty of the counsel on receipt of the client’s decretal money, to inform the client thereof and pay him without the amount under receipt without any delay. The Kerala High Court suspended the respondent for a period of six months, for non-fulfillment of this duty under Rule 27 of the BCI Rules- Chapter II.
- Bar Council of Maharashtra vs. V. Dabholkar and others AIR 1976 SC 242- The Bar Council functions in a dual capacity, one as the prosecutor through its Executive Committee and the other quasi-judicial performed through its Disciplinary Committee. Hence, being the prosecutor, the State Bar Council would be an ‘aggrieved person’ and therefore, the appeal under section 38 of the Advocates Act, 1961 would be maintainable.
- PD Khandekar vs Bar Council of Maharashtra 1984 SCR (1) 414- It is professionally improper for a member of the bar to prepare false documents, or to draw pleadings knowing that the allegations made are untrue to his knowledge. Thus, giving of improper legal advice may amount to professional misconduct, which may not be so by the giving of wrong legal advice. (Violation of Rule 11 of the BCI Rules-Chapter II)
- Hikmat Ali Khan vs Ishwar Prasad Arya AIR 1997 SC 864- The defendant assaulted his opponent with a knife. Prosecuted under Section 307 of IPC and Section 25 of the Arms Act. Conviction suspended on basis of a letter from the governor. Supreme Court held that his conduct was such that his name should be removed from the state role of advocates as he was unworthy of remaining in the profession after the conviction. (Rule 7A of Chapter III of BCI Rules)
- NG Dastane vs. Shrikant S. Shivde AIR 2001 SC 2028- Advocates kept seeking adjournments, and thus harassing the witnesses for the purpose of cross-examination. Guilty of misconduct. Court also analysed Section 35 of the Act and held that the requirement of “reason to believe” cannot be converted into a formalised procedural road block, it being essentially a barrier against frivolous enquiries. Violation of Rule 11 of the BCI Rules- Chapter II.
- In Re: Tulsidas Amanmal Karani vs. Unknown AIR 1941 Bom 228 – Section 35 envisages not only ‘professional misconduct’ but also ‘other misconducts’, not defined in the Act. In case relating to Indian Bar Councils Act 1926 the Court held that “any conduct which in any way renders a man unfit for the exercise of his profession or is ‘likely to hamper or embarrass the administration of justice by this Court or any of the Courts subordinate thereto’ may be considered to be misconduct calling for disciplinary action.”
- Central Bureau of Hyderabad vs. K Narayan Rao (2012) 9 SCC 512 – For liability, there has to be moral delinquency. Mere negligence sans moral delinquency will not suffice. If negligence is culpable nature, then it may lead to prof misconduct but not necessarily criminal liability.
- Harish Uppal vs. Union of India (2003) 2 SCC 45- Lawyers have no right to strike, i.e. to abstain from appearing in the court in cases in which they hold vakalat for the parties, even if it is in response to or in compliance with a decision of any association or body of lawyers.
- Byram Pestonji Gariwal vs. Union Bank of India (1992) 1 SCC 31 – Supreme Court discussed the role of the counsel in compromise of suit. It will be prudent for counsel not to act on implied authority (given by vakalatnama) except when warranted by the necessity of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay
- Rajendra Pai vs. Alex Fernandes AIR 2002 SC 1808 – The lawyer in a class action suit settled contingent fee depending on the quantum of compensation awarded to the claimant; and that he identified some claimants in opening a bank account wherein the cheque for the awarded amount of compensation was lodged and then the amount withdrawn which identification was later on found to be false. Held guilty of misconduct (as in violation of Rule 20 of the BCI Rules of Conduct) and suspended for seven years.
- R.D. Saxena vs. Balram Prasad Sharma (2000) 7 SCC 264 – The advocate does not have a lien for his fees on the litigation papers entrusted to him by his client.
- Virendra Kumar Gupta vs. Anil Kumar Jain –The lawyer in connivance with the other party, deliberately and intentionally did not appear in the execution proceedings of his client, which were therefore dismissed in default. The lawyer did not serve the interest of his client and in fact acted against his interest. Guilty of misconduct under Rule 5 of the BCI Rules- Chapter II.
- Joginder Singh vs BCI AIR 1975 Delhi 192 – Advocate had concealed facts about his conviction under Section 473 of IPC and the fact that he was out on bail. Given the high standards expected of those in the legal profession, it would definitely be a fraud/misrepresentation if the concerned advocate does not disclose the fact of his previous conviction, especially those involving moral turpitude as they help ascertain the character of a man. (Violation of Rule 43 of the BCI Rules- Chapter II)
- Surendra Nath Mittal vs. Daya Nand Swaroop BCI Tr. Case No. 63 / 1987. – The advocate made manipulation in the operative part of the judgement and decree by adding the words “mai sood” i.e. including interest. Disciplinary committee held him guilty of professional misconduct. (Violation of Rule 1 and 2 of the BCI Rules- Chapter II)
- Vikramaditya vs. Smt. Jamila Khatoon D.C. Appeal No. 21/1996 – The obtaining of the signature by the advocate on blank vakalatnama and blank watermarked papers for the purpose of defrauding the client’s amounts to the professional misconduct under Rule 15 of the BCI Rules- Chapter II.
- Allahabad Bank vs. Girish Prasad Verma BCI Tr. Case No. 49/1993 – The advocate did not file, rather, misappropriated the sum paid to him by the client for the purpose of court fees (in violation of Rule 23 of the BCI Rules- Chapter II). U.P Bar Council disciplinary committee held him guilty of professional misconduct.
- Babu Lal Jain v. Subhash Jain BCI Tr. Case No. 115 / 1996- The complainant alleged that the respondent advocate was a practising lawyer as well as was working as an editor, printer, and publisher of a weekly paper. Rule 47 of BCI rules prohibits an advocate to be engaged personally in any business. The respondent advocate was found to have been actively engaged in carrying on the business and his conduct was taken by the disciplinary committee as professional misconduct.
- John D’souza v. Edward Ani 1994 SCC (2) 64 The lawyer refused to return the will he executed, in spite of two letters demanding to hand over the will. The Supreme Court held that the advocate has committed breach of his professional duty and found him guilty of profession misconduct. (Violation of Rule 15 of the BCI Rules- Chapter II)
- V. C. Rangadurai vs D. Gopalan 1979 SCR (1) 1054- The lawyer failed to disclose the conflicting interests to client, and also betrayed the trust reposed in him by the client, hence violating Rule 24 of the BCI Rules of Professional Ethics. The lawyer was suspended for one year.
Professional Ethics Quiz 1
1.) A applied for a government job. A certain percentage of seats had been reserved for a certain backward class. A, who was keen on getting the job, and did not belong to the reserved class, submitted a false certificate in order to secure a position. Would A be able to enrol as an advocate?
A.) Yes, because A was really keen on getting the job
B.) No, because what A did is illegal and criminally punishable
C.) No, because the submission of a false certificate amounted to crime of moral turpitude
D.) Yes, because the submission of a false certificate does not amount to a crime of moral turpitude.
E.) No, because although the submission of a false certificate does not amount to a crime of moral turpitude, he should be tried for false representation.
2.) A, an advocate assaulted the opposing counsel B, with a knife, during the lunch interval in a Munsif’s Court. A pistol shot is also said to have been fired by A at the time of incident A was convicted of the offence, and the High Court affirmed the conviction. Can the State Bar Council take any action against A?
Principle: The Advocates Act provides that certain persons shall not be admitted as advocates on the state rolls. These include those convicted of an offence involving moral turpitude
A.) Yes, the State Bar Council is equivalent to the High Court in a particular State and can take action against any errant.
B.) No, this is a criminal offence and any punishment to A must be meted out by the Courts and the Bar Council has no power whatsoever
C.) No, because once A has served his sentence given by the High Court, any further action on him by the Bar Council amounts to ‘double jeopardy’ which is unconstitutional
D.) Yes, because the State Bar Council is empowered to pass an order imposing punishment on an advocate found guilty of professional or other misconduct.
E.) No, because the order of the High Court is not final and conclusive as A can still appeal to the Supreme Court. However, if the S.C. reaffirms the H.C. order, then the Bar Council can take action.
3.) P seeks enrolment as an advocate. P, however, did not disclose prior convictions under Ss. 411 and 473 of the Indian Penal Code. However, the application had no column for the same and hence P decides not to disclose his conviction. Can P be barred from enrolling an advocate?
Principle: An advocate must make free and honest depositions about his past convictions while applying for state rolls.
A.) No, because the fact that there is no column for the same in the form implies that such information is irrelevant for his enrolment.
B.) Yes, because P is a branded criminal and should not be allowed to enter the noble profession of advocacy.
C.) No, the authorities cannot be allowed to take advantage of their own negligence in providing the relevant column.
D.) No, because S.411 and 473 of the I.P.C. does not deal with crimes of moral turpitude
E.) Yes, under S.17 of the Indian Contract Act, P had a duty to speak; therefore, even if there was no column in the form for disclosing previous convictions, P should have disclosed it.
4.) A received a maintenance allowance under S.17B of the Industrial Disputes Act, whilst a workmens’ dispute involving A was pending in the higher court and was simultaneously, practicing law as an enrolled Advocate. Is he guilty of violating professional ethics?
Principle : If a person enters the profession of law as a pleader, she must make up her mind to conduct the business of pleader and nothing else.
A.) Yes, A is guilty of misconduct because an advocate cannot take up any other means of employment as long as he is enlisted as a practising advocate
B.) No, the decision of the Courts are beyond A’s control and hence he should not be punished for the same
C.) No, A cannot be held guilty of violating professional ethics as a maintenance allowance received under the IDA cannot be said be engaging in ‘another profession’
D.) Yes, because the receiving of maintenance allowance under S.17B is fraudulent
E.) No, A cannot be held guilty as the matter is still sub-judice.
5.) A, a practising enrolled advocate was serving as a chairman of the board of directors of a Company without any ordinary sitting fee, and none of A’s duties as Chairman of the Board of Directors was of an executive character. It is to be noted that A was not the Managing Director or a Secretary of the Company. Is A guilty of violating professional ethics?
Principle: Subject to certain exceptions, an enrolled advocate may not take up any other profession
A.) Yes, because the Advocates Act prohibits any enrolled advocates from practising any other profession.
B.) No, because the Advocates Act allows certain exception and A’s role falls within that exception
C.) Yes, A is guilty as he is the Chairman of the Board of Directors. However, he could have escaped the liability if he was the Managing Director
D.) No, because professional ethics is not defined in the ‘Advocates Act 1960’
E.) No, because in order to violate professional ethics, a person has to be criminally liable. A’s liability, in this case, does not give rise to any such liability
6.) In a criminal case against C, C could not secure the services of any senior members of the Bar. C approached almost every member of the Bar. However, each one of them refused to represent C. All senior counsels had already been retained by the complainants. C, with no other alternative left, approached B, another senior counsel. However, B rejected the brief on grounds of her connection with the complainant. Is B entitled to act in such a fashion?
Principle: An advocate must accept any brief in the Courts or Tribunals or any other authorities; the fee should be consistent with the advocate’s standing at the Bar and the nature of the case. An advocate may refuse to accept a particular brief in special circumstances.
A.) Yes, B is an independent advocate and has full freedom to accept not accept any brief according to her personal choice
B.) Yes, because it is illegal for a counsel to take up a matter when she has connections with the opposite party according to the BCI rules
C.) No, because B is, in morals bound to take up the matter of a helpless man, although there is no legal rule compelling B to do the same
D.) No, because a lawyer has no right to reject a brief offered to her on payment of the fee agreed upon between the parties on grounds of connection to the opposing party
E.) Yes, because the counsel’s connections with the complainant can qualify as the ‘special circumstances’ mentioned in the principle.
7.) A, an advocate, wanted to retire from a case. A did not, however, file any instruction providing sufficient cause to retire. A did not provide sufficient notice to the client, C. A also did not ensure the refund of the parts of fees that was unearned. Would A be allowed to retire from the case?
Principle: An advocate cannot, subject to certain conditions, usually retire from a case
A.) Yes, A is not legally bound to do any of the above as the sole interest of the case is with C and A has no interest in it whatsoever
B.) Yes, A is not bound to refund the unearned money as fees to lawyers are, according to BCI rules to be treated as ‘gifts’ and once given cannot be returned
C.) Yes, He is an independent advocate and may retire from the case if he chooses to. However, he should refund the money to C.
D.) No, because according to BCI rules, for an advocate to retire from a case, he has to fulfil all the above three criteria, and A has not filled any
E.) No, because that would be a breach of contract between A and C
8.) In a partition suit, A, an advocate, was representing defendant, D. D submitted an affidavit from P, which was critical to the case. The affidavit contained identification by the advocate, A. A here is a material witness to prove the genuineness of the affidavit. Can A be disbared from appearing in the case in case an application for such withdrawal is made?
Principle: An advocate should not accept a brief or appear in a case in which an advocate has reason to believe that she will be a witness.
A.) Yes, because if an advocate handling the case, later becomes a genuine witness to the case, he has a duty to retire from the case
B.) No, because the client’s interest are foremost for the advocate and his retirement would jeopardise such interest
C.) No, because the two roles being separate and not interrelated, discharging one does not hamper discharge of another
D.) Yes, but only because it is a partition suit and the Code of Civil Procedure, 1908 makes it mandatory for advocates to act accordingly
E.) No, because a mere verification of an affidavit is not in law enough to qualify one as ‘material witness’
9.) Advocate A was engaged by C, the client, to file a suit on two promissory notes for recovery with interest due against a debtor, D. Advocate A knew the D for 7-8 years and has been appearing for her in succession certificate proceedings. A, however, accepted the brief and did not inform C about prior connection with D. Is A guilty of violating professional ethics?
Principle: An advocate must disclose any interest the advocate might have, in or about the controversy, that a client would like to know to decide whether to engage the advocate, or continue the engagement of the advocate.
A.) No, because certificate proceedings are fundamentally different from suits on promissory notes. However, had this been a suit for certificate proceeding, A would have been in violation of professional ethics
B.) Yes, because A is under a duty to make a full and frank disclosure to C. A could only continue representing C, if C had asked A to continue after A had disclosed his connection with D.
C.) No, because the prior cases done by A on behalf of D has no connection with this case on against D. A cannot be expected to disclose each and everyone of his past clients to C
D.) No, because an advocate- client relationship has an underlying sense of confidentiality. In fact, revealing that D was his past client would be breach of that confidentiality and violate professional ethics.
E.) Yes, because according to law, A cannot take up such a case as there is a presumption of unfair trade practises against him
10.) A is retained by C, the client, to defend C from an offence C allegedly committed under S.289 of the India Penal Code. C was charged with criminal negligence in taking care of a pet which had aggressive tendencies. The pet caused serious harm to a person, J. A is very scared of aggressive pets, as he was mauled by a dog when he was a kid. He strongly feels that pets which can harm human beings have no place in society. A also believes that such pet owners should be taught a lesson. However, there is no adequate evidence against C, but A himself is sure that C is liable. A takes up the case and deliberately loses. Is A guilty of professional misconduct?
Principle: An advocate has a duty to uphold the interest of the client, regardless of personal opinion.
A.) Yes, because A is obligated under the BCI rules to not let his personal opinion come in the way of an effective defence for C in a criminal matter.
B.) Yes, because losing a case, deliberately or not, amounts to professional misconduct and incompetence
C.) No, because A stood up for what he felt is right and that should be appreciated
D.) No, because by appointing A as his lawyer, C has impliedly accepted to abide by whatever A’s opinion is on the matter, and he is bound by whatever the consequences of such opinion is
E.) No, because it should be appreciated that A did whatever he did as a result of the mental trauma he suffered as a kid without any ill will or motive.
11.) P was prosecuting D in a high-profile murder case. The case received immense media attention, and P was praised for building a strong case. P had found nine witnesses, who were ready to testify that D was the murderer. As time went by, however, P found that 8 of those 9 witnesses had contradicted themselves or withdrawn their statement. P started developing serious doubts about the truthfulness of the witnesses. P also discovered that the only witness willing to testify herself had a motive to murder the victim. Under the circumstances, does P have an obligation in law to refrain from prosecuting D? Principle: A prosecutor must also ensure that there is no suppression of material that can establish the innocence of the accused.
A.) No, because she is appointed by the State and any obligation P has is moral and not legal
B.) No, as the correctness of the witness’s statement is for the Judge to decide and not P, so in the interest of justice, she should carry on with her prosecution
C.) No, he not need refrain from prosecuting D. He should, however, disclose all the material in the interest of justice
D.) Yes, because the witness’s motive to murder the victim provides a new angel f consideration in the particular case
E.) Yes, because he is in law duty bound to make a free and fair disclosure and then refrain from prosecuting D based on statements of such witnesses.
12.) A, being charged with embezzlement, retains B, an attorney to defend her. In the course of the proceedings, B observes that an entry has been made in A’s account book, charging A with the sum said to have been embezzled, and that this entry was not in the book at the commencement of his employment. Is this fact protected from disclosure u/s 126 of Indian Evidence Act?
A.) Yes, because this fact is confidential between B and his client A and revealing such would lead to violation of the fiduciary relationship between them
B.) No, because S. 126 of the Indian Evidence Act is not applicable to the present case
C.) No, this fact, being a fact observed by B in the course of employment, shows that fraud has been committed since the commencement of the proceedings.
D.) Yes, because account books are generally kept in custody under the instruction of the Court and it is the job for the prosecution should undertake due diligence and observe the account books
E.) No, because such cases of embezzlement of often relate to national interest and the fiduciary relationship of a lawyer- client cannot be used to override national interest.
13.) A, a client, says to B, an attorney: “I wish to obtain possession of property by the use of a forged deed on which I request you to sue.” Is such a communication protected from disclosure?
Principle: Any communication made in furtherance of any criminal purpose is not protected from disclosure
A.) No, the communication, being made in furtherance of a criminal purpose, is not protected from disclosure.
B.) Yes, because this is a communication for the purpose of engagement made to the advocate by the client during such an engagement, thereby protected under S. 126 of the Indian Evidence Act
C.) No, because in order to protect a communication from being disclosed, such communication must be in writing
D.) Yes, as there is no evidence of any such communication taking place
E.) Yes, because such disclosure depends on the free will of the advocate and he can choose not to disclose it
14.) C is one of the three children and heirs with a one-third interest in undivided ancestral property. C approaches A, an advocate, requesting an alternative to litigation through which the share in the familial property could be settled fairly and amicably. A says to C that from twenty years professional experience, A is of the view that the person who “…goes to the court and fights really dirty gets the most in a ancestral family dispute of this nature.” Is A’s advice in accordance with professional ethics and standards?
Principle: It should be the first duty of a member of the legal profession to compose family differences and settle dispute and controversies, by amicable settlement.
A.) No, because by telling the number of years of his experience, A is trying to intimidate and impose his own opinion on his client
B.) Yes, because A has given his honest opinion after due consideration, drawing from his experience as a lawyer
C.) No, because A, here is fomenting litigation rather than proposing an amicable settlement which is violative of professional conducted.
D.) Yes, because in cases of the nature mentioned above litigation is unavoidable and any efforts at amicable settlement is futile and a waste of time
E.) Yes, because the litigation that might ensue from his advice can be financially very profitable for A, and the professional conduct of advocates stipulates that financial considerations should be taken into account by the advocate before giving his opinion.
15.) A, an advocate, withdrew a suit filed by the client for declaration that she was not the lawfully wedded wife of the defendant, upon her instructions. A then filed an application for maintenance without instructions from the client by obtaining her signature on blank sheets, on a false premise. Is A guilty for professional misconduct?
Principle: An advocate has a duty to act only on the instruction of the client, and no one else.
A.) Yes, A is guilty of professional misconduct for acting without the client’s instructions.
B.) No, because A is, in law, duty bound to act for the best interest of his client.
C.) No, because A’s actions were motivated by previous instructions provided to him by his client and she has not explicitly cancelled the said instructions
D.) No, A is not guilty of professional misconduct as his action was for his client’s best interest, but he is guilty of criminal breach of trust for obtaining her signature on a blank paper and using them without her authority
E.) Yes, because a suit for maintenance in law cannot be filed after a suit for declaration that his client is not the lawfully wedded wife of the defendant, and this points to his professional incompetency
16.) A, an advocate, entered into an agreement with C, the client, who was dismissed from service. The fee agreement entailed that, that if A were able to recover past salary and allowance, A would receive a fee of Rs. 5,000/-. Is this agreement legal?
Principle: The advocate has a duty to refrain from a fee arrangement contingent upon outcome of litigation.
A.) Yes, the agreement is a full fledged contract according to S.10 of the Indian Contract Act , being between A and C with Rs. 5000 being the consideration based on the contingency of winning the case.
B.) No, because such a contract is wagering in nature.
C.) Yes, because this is prevalent method of transaction between advocate and clients in India.
D.) No, because such a contract is contingent on winning or losing of the case A is barred from agreeing to receive a fee dependent on the success of suit or agree to share the proceeds of that litigation under BCI rules.
E.) No, because the requisite amount to be given to A is below the requisite amount for advocates mentioned in the Minimum Wages Act.
17.) A, an advocate, purchased a property which was under litigation. The sale deed was fictitiously drawn in the name of B, to conceal the actual purchase by A. A, however, appeared as a pleader in the litigation, and succeeded. B executed a deed of relinquishment in favour of A. Is A guilty of misconduct?
Principle: An advocate cannot purchase any property sold in the execution of a decree or order in any suit, appeal or other proceeding in which the advocate was in any way professionally engaged
A.) Yes, A is guilty of misconduct as A acquired an interest in a pending suit, in which A was acting as an advocate.
B.) No, because an advocate has no restrictions in buying a property in execution of a decree in whose litigation he was involved as long as he buys it in another’s name
C.) No, because an advocate has no restrictions in buying a property in execution of a decree in whose litigation he was involved
D.) Yes, because although the buying itself is legal, buying the property in B’s name amounts to Benami transaction
E.) Yes, because no man should take advantage of his own mistakes
18.) A, an advocate, owes C Rs.500/- as a debt for rent. C approaches A to draft his will. A says to C “I will draft the will; in any event, I owe you Rs.500/-, and it will be a good way to settle the debt.” Is A in violation of any rule pertaining to professional ethics of advocates?
Principle: An advocate should separate his professional commitments from personal commitments
A.) No, A owed C Rs. 500, and as long as both parties consent, they can choose to settle the debt in amount manner they choose to.
B.) Yes, because A is adjusting the legal fees for writing a will against the rent money, which is a personal liability A owes to C.
C.) No, because non definable in terms of money like ‘drafting of a will’ in law is not good consideration for settlement of a debt of a definable amount of money
D.) Yes, because it is not in consonance with professional ethics of advocates to draft wills in such a casual manner, that too without taking a NOC for the particular will from the respective State authorities
E.) No, because these type of settlements are encouraged by the BCI in order to simplify the relationship between advocates and clients
19.) A, an advocate, was retained by the testatrix, T, to draft a will. A made an entry to this effect in the register of wills maintained by A, and also gave a receipt to T. After the death of her husband, T hired another advocate, B. B requested A to return the will. A denied having the will. Is a guilty of violation of the principle stated below?
Principle: An advocate must not abuse or take advantage of the confidence reposed in her by the client.
A.) No, because the fact that T was hiring another advocate indicates the lack of confidence reposed in him by T
B.) No, because A’s duties are owed solely towards T and not towards B
C.) Yes because A is the bailee of the will and T is the head bailor, whereas B is the Sub-bailor
D.) No, because the wills, made by A himself, are his own property as long as it is in his possession. However, he should however, refund any money taken from T for drafting the same
E.) Yes, A’s act of not returning the will that was entrusted to A by T is an abuse of trust reposed in A by T.
20.) A, an advocate, was representing C, the client, in a criminal appeal. A received a sum of Rs.750/- from the client towards printing expenditures. A deposited the sum with the Court. Later, A withdrew the unspent balance of Rs.242/- without C’s consent, and kept it. Is A guilty of misconduct?
Principle: An advocate should keep accounts of the client’s money entrusted to the advocate by the client.
A.) No, because by virtue of being C’s lawyer A has an implied authorisation to withdraw money on behalf of the client and use it for settlement of his fees. However, he should record the same in books of account
B.) No, because the A has rightfully deposited the money into Court after receiving it
C.) Yes, A is guilty of misconduct, as he should have shown in detail how much A received in the form of expenses, and how much was refunded to A by the court.
D.) Yes, because A needs express authorization of his client to withdraw any money on her behalf
E.) No, as printing expenses can qualify as ‘nominal expenses’ and does not need to be recorded in books of accounts
21.) A, an advocate, appeared for C, the complainant, in a criminal matter. Later, A accepted a brief on behalf of D, the accused in the same matter, taking the consent of the C. Is A guilty of violating professional ethics?
Principle: An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear, or plead for the opposite party.
A.) Yes, as A has first appeared on behalf of the complainant and then accepted a brief from the opposite party in the same matter.
B.) No, because the above stated rule is restricted to civil matters not applicable to criminal matters
C.) No, because the consent of both parties were obtained
D.) Yes, because accepting briefs of both parties gives rise to a presumption of unfairness on A’s part
E.) No, because ‘professional ethics’ is a volatile concept and has no fixed definition
22.) Advocate A, aggrieved by an order of the Supreme Court dismissing a matter in limine, filed a writ petition before the Supreme Court, wherein A stated that the matter was improper for the Chief Justice of India to hear, and further stated that the dismissal was totally unjust, unfair, arbitrary, and unlawful, and a flagrant violation of the mandate under A.14; that was a violation of the sacred oath of office, and to declare that the Chief Justice’s holding office was unfair. It was also asserted that since the first petition was not disposed of by a five-judge bench, the order was non-est. Does such behaviour on A’s part, amount to criminal contempt?
Principle: An advocate should always conduct himself with dignity and self-respect before the court. An advocate should not be servile. However, whenever there is a proper ground for serious complaint, against a judicial officer, it is an advocate’s right and duty to submit his grievance to the proper authorities.
A.) No, because A has freedom of speech and expression under Art 19 of the Indian Constitution.
B.) No, because there is a proper ground for complaint in this case and A has a right to submit her grievances
C.) Yes, because the assertion that the order was non est, interferes with the administration of justice, as it attacks judicial finality, and questions the authority of the court.
D.) Yes, because constitutional matters demands more etiquette on part of an advocate than other civil and criminal matters
E.) Yes, because the conduct and eligibility of the Chief Justice cannot be questioned by an advocate.
Answer Key of Professional Ethics Quiz 1
1.) C 2.) D 3.) E 4.) A 5.) B 6.) E 7.) D 8.) A 9.) B 10.) A 11.) E 12.) C 13.) A 14.) C 15.) A 16.) D 17.) A 18.) B 19.) E 20.) C 21.) C 22.) C
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