1929 Ethics FD
1929 Ethics FD
PROJECT BY:
SEMESTER: 9th
SUBMITTED TO:
KUMAR SHASHWAT
(1929)
B.A. LL. B
FIFTH YEAR.
ACKNOWLEDGEMENT
Firstly, I would like to express our immense gratitude towards our institution Chanakya
National Law University, which created a great platform to attain profound technical skills in
the field of B.A., LL.B. in the subject Private International Law, thereby fulfilling our most
cherished goal.
I sincerely express thanks to my guide and teacher Mrs. Meeta Mohini who helped me complete
this project to the best of my capabilities and patiently attended to my queries and doubts.
I express deep gratitude to my family and friends who continue to push me in the daunting times
of project submission and ultimately, whether directly or indirectly, helping me complete this
project successfully.
Contents
INTRODUCTION ..................................................................................................................... 5
CONCLUSION ....................................................................................................................... 18
BIBLIOGRAPHY ................................................................................................................... 19
INTRODUCTION
The Bar Council of India is a statutory body created by Parliament to regulate and represent
the Indian bar. We perform the regulatory function by prescribing standards of professional
conduct and etiquette and by exercising disciplinary jurisdiction over the bar. We also set
standards for legal education and grants recognition to Universities whose degree in law will
serve as qualification for enrolment as an advocate.
In addition, it performs certain representative functions by protecting the rights, privileges and
interests of advocates and through the creation of funds for providing financial assistance to
organise welfare schemes for them.
The functions of the Bar Council of India are:
• To establish guidelines for advocates' professional conduct and decorum.
• To establish a mechanism for its disciplinary committee and the disciplinary committees
of each state bar council to follow.
• To protect advocates' rights, privileges, and interests.
• To encourage and assist the reform of the legal system.
• To deal with and resolve any problem that a State Bar Council may refer to it.
• To promote legal education and establish legal education standards. This is done in
collaboration with Indian universities that offer legal education as well as state bar
councils.
• To recognize universities that offer a law degree as a prerequisite for becoming an
advocate. The Bar Council of India inspects and visits universities, or directs the State
Bar Councils to do so.
• Seminars and discussions on legal themes by famous jurists will be held, and journals
and papers of legal relevance will be published.
• To organize poor people's legal aid.
• Recognize foreign legal qualifications gained outside of India for the purpose of
admission as an advocate in India on a reciprocal basis.
• To manage and invest the Bar Council's funds.
• To make provisions for the election of persons who will lead the Bar Councils.
• The Bar Council of India can also set up funds for the following purposes: providing
financial support for welfare initiatives for the destitute, disabled, and other advocates,
providing legal aid, and establishing law libraries.
• For any of these reasons, the Bar Council of India can receive grants, donations, and gifts.
The Bar Council of India has various committees which make recommendations to the council.
The members of these committees are elected from amongst the members of the Council.
The case of Secretary, Karnataka Khadi Gramudyog Samyukta Sangha, Benguri, Hubli v. J.S.
Kulkarni, the concerned matter was transferred to the Bar Council of India wherein the
Disciplinary Committee decided the Case.
SPECIFIC RULES OF THE BAR COUNCIL OF INDIA RULES
Section 2 of the Advocates Act, 1961 entails the definition of the Bar Council of India.
Section 2(e) states that:
“Bar Council of India” means the Bar Council constituted under section 4 for the territories to
which this Act extends.
Section 4 of the Advocates Act, 1961:
Bar Council of India:
(1) There shall be a Bar Council for the territories to which this Act extends to be known as
the Bar Council of India which shall consist of the following members, namely:—
(a) the Attorney-General of India, ex officio;
(b) the Solicitor-General of India, ex officio; 1[***]
(c) one member elected by each State Bar Council from amongst its members. 2[(1A) No
person shall be eligible for being elected as a member of the Bar Council of India unless he
possesses the qualifications specified in the proviso to sub-section (2) of section 3.] 3[(2) There
shall be a Chairman and a Vice-Chairman of the Bar Council of India elected by the Council
in such manner as may be prescribed.
(2A) A person holding office as Chairman or as Vice-Chairman of the Bar Council of India
immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of
1977), shall, on such commencement, cease to hold office as Chairman or Vice-Chairman, as
the case may be: Provided that such person shall continue to carry on the duties of his office
until the Chairman or the Vice-Chairman, as the case may be, of the Council, elected after the
commencement of the Advocates (Amendments) Act, 1977 (38 of 1977), assumes charge of
the office.] 4[(3) The term of office of a member of the Bar Council of India elected by the
State Bar Council shall—
(i) in the case of a member of a State Bar Council who holds office ex-officio, be two years
from the date of his election 2[or till he ceases to be a member of the State Bar Council,
whichever is earlier]; and
(ii) in any other case, be for the period for which he holds office as a member of the State Bar
Council: Provided that every such member shall continue to hold office as a member of the
Bar Council of India until his successor is elected.]
Now, Bar Council of India makes a set of rules which are to adhere by an advocate enrolled as
per the Advocates Act, 1961.
Chapter 2 of Part 6 lays down the standards of professional conduct and etiquettes which is
further divided into four sections.
Section II Duty to the Client
11. An advocate is bound to accept any brief in the Courts or Tribunals or before any other
authorities in or before which he proposes to practise at a fee consistent with his standing at
the Bar and the nature of the case. Special circumstances may justify his refusal to accept a
particular brief.
12. An advocate shall not ordinarily withdraw from engagements, once accepted, without
sufficient cause and unless reasonable and sufficient notices is given to the client. Upon his
withdrawal from a case, he shall refund such part of the fee as has not been earned.
13. An advocate should not accept a brief or appear in a case in which he has reason to believe
that he will be a witness, and if being engaged in a case, it becomes apparent that he is a witness
on a material question of fact, he should not continue to appear as an Advocate if he can retire
without jeopardising his client’s interests.
14. An advocate shall at the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosure to his client relating to his connection with the
parties and any interest in or about the controversy as are likely to affect his client’s judgement
in either engaging him or continuing the engagement.
15. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair
and honourable means without regard to any unpleasant consequences to himself or any other.
He shall defend a person accused of a crime regardless of his personal opinion as to the guilt
of the accused, bearing in mind that his loyalty is to the law which requires that no man should
be convicted without adequate evidence.
16. An advocate appearing for the prosecution of a criminal trial shall so conduct the
prosecution that it does not lead to conviction of the innocent. The suppression of material
capable of establishment the innocence of the accused shall be scrupulously avoided.
17. An advocate shall not, directly or indirectly, commit a breach of the obligations imposed
by Section 126 of the Indian Evidence Act.
18. An advocate shall not, at any time, be a party to fomenting of litigation.
19. An advocate shall not act on the instructions of any person other than his client or his
authorised agent.
20. An advocate shall not stipulate for a fee contingent on the results of litigation or agree to
share the proceeds thereof.
21. An advocate shall not buy or traffic in or stipulate for or agree to receive any share or
interest in any actionable claim. Nothing in this rule shall apply to stock, shares and debentures
of government securities, or to any instruments which are, for the time being, by law or custom,
negotiable or to any mercantile document of title to goods.
22. An advocate shall not, directly or indirectly, bid for or purchase, either in his own name or
in any other name, for his own benefit or for the benefit of any other person, any property sold
in the execution of a decree or order in any suit, appeal or other proceeding in which he was
in any way professionally engaged. This prohibition, however, does not prevent an advocate
from bidding for or purchasing for his client any property which his client may himself legally
bid for or purchase, provided the Advocate is expressly authorised in writing in this behalf.
22A. An advocate shall not directly or indirectly bid in court auction or acquire by way of sale,
gift, exchange or any other mode of transfer either in his own name or in any other name for
his own benefit or for the benefit of any other person any property which is subject matter of
any suit appeal or other proceedings in which he is in any way professionally engaged*.
23. An advocate shall not adjust fee payable to him by his client against his own personal
liability to the client, which liability does not arise in the course of his employment as an
advocate.
24. An advocate shall not do anything whereby he abuses or takes advantage of the confidence
reposed in him by his client.
25. An advocate should keep accounts of the client’s money entrusted to him, and the accounts
should show the amounts received from the client or on his behalf, the expenses incurred for
him and the debits made on account of fees with respective dates and all other necessary
particulars.
26. Where moneys are received from or on account of a client, the entries in the accounts
should contain a reference as to whether the amounts have been received for fees or expenses
and during the course of the proceeding, no advocates shall, except with the consent in writing
of the client concerned, be at liberty to divert any portion of the expenses towards fees.
27. Where any amount is received or given to him on behalf of his client, the fact of such
receipt must be intimated to the client, as early as possible.
28. After the termination of the proceeding, the advocate shall be at liberty to appropriate
towards the settled fee due to him, any sum remaining unexpended out of the amount paid or
sent to him for expenses or any amount that has come into his hands in that proceeding.
29. Where the fee has been left unsettled, the advocate shall be entitled to deduct, out of any
moneys of the client remaining in his hands, at the termination of the proceeding for which he
had been engaged, the fee payable under the rules of the Court, in force for the time being, or
by then settled and the balance, if any, shall be refunded to the client.
30. A copy of the client’s account shall be furnished to him on demand provided the necessary
copying charge is paid.
31. An advocate shall not enter into arrangements whereby funds in his hands are converted
into loans.
32. An advocate shall not lend money to his client for the purpose of any action or legal
proceedings in which he is engaged by such client.
Explanation. An advocate shall not be held guilty for a breach of this rule, if in the course of
a pending suit or proceeding, and without any arrangement with the client in respect of the
same, the advocate feels compelled by reason of the rule of the Court to make a payment to
the Court on account of the client for the progress of the suit or proceeding.
33. 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.
The matter was first brought before the Karnataka State Bar Council but it could not be
disposed of within the prescribed statutory period and therefore it was transferred to the Bar
Council of India. In this case complainant engaged the respondent advocate, Sri J.S. Kulkarni
for filing execution proceedings in the competent Court for the execution of certain decrees
obtained in civil suit. It was alleged that the advocate filed the execution proceedings in the
competent Court and he had received different amounts towards the decretal 'amounts in
different execution proceedings but he did not pay the whole amount to the complainant. The
complainant was successful in proving that after having engaged the respondent to represent
him in the execution proceeding arising out of decrees against the judgment debtors he
recovered but the whole amount was not paid to the complainant. Disciplinary Committee of
the Bar Council of India has held that Rules 23 to 30 stated in SectionIl of Chapter Il of Part
VI of the BCI Rules specifically provide that an advocate shall keep the account of the client's
money entrusted to him and the account so prepared should show the amounts received from
the client or on his behalf the expenses incurred for him and debits made on account of fees
with respective dates and all other necessary particulars. Whenever the moneys are received
from or on account of a client, the entries should contain a reference as to whether the amounts
have been received for fees or expenses and during the course of the proceedings, no advocate
shall, except with the consent in writing of the client concerned, be at liberty to divert any
portion of the expenses towards fees. Where any amount is received or given to him on behalf
of his client the fact of such receipt must be intimated to the client, as early aspossible. After
the termination of the proceedings, the advocate shall be at liberty to appropriate towards the
settled fees due to him, any sum remaining unexpended out of the amount paid or sent to him
for expenses or any amount that has come into his hand in that proceeding where the fee has
been left to be unsettled, the advocate shall be entitled to deduct, out of any moneys of the
client remaining in his hands at the termination of the proceeding for which he had been
engaged, the fee payable under the rules of the Court in force for the time being or by then
settled and the balance (if any) shall be refunded to the client. In view of the above duties of
the client the Committee held that the advocate had failed to discharge his duties towards the
client as he neither furnished the accounts of the recovery of the amounts from different
judgment-debtors nor refunded the said amounts to the client nor proved the claim of settled
or unsettled fees payable by the client to him. The Committee further opined that allegations
as to the recovery of amounts from different judgment-debtors in different execution
proceeding were of the year 1984 onwards and complaint was also filed in 1988 and the matter
was delayed in all these years and the proceedings could not be concluded within reasonable
time, a lenient view should be taken against him. The Committee held the advocate guilty of
having committed professional misconduct and ordered that he be suspended from practice for
a period of one year from the date of the receipt of the order. The Committee debarred him
from practising in any Court or before any authority or person during the period of suspension.
FACTS:
In this case complainant engaged the respondent advocate, J.S.Kulkarni for filing the
execution proceeding in the court for the execution of the certain decrees obtained in the civil
suit. It was alleged that the advocate file the execution proceeding in the competent court and
he had received the different amounts towards the decretals amounts in different execution
proceeding but he did not pay the whole amount to the compliant. The complainant was
successful in proving that the after having engaged the respondent to represent him in the
execution proceeding arising out of decree against the judgement debtor he recovered but the
whole amount was not paid to the complainant.
HELD:
Disciplinary committee of the Bar Council of the India held that Rules 23 to 30 stated in the
section II of the Chapter II of the Part 5 of the BCI rules specially provide that an advocate
shall keep an account of the client money entrusted to him and the account so prepared should
know the amount received from the client or on his behalf the expenses incurred for him and
debits made on account of fees with respective dates and all other necessities particulars.
Whenever the moneys are received from or an account of a client the entries should contain a
reference as to whether the amount have been received for the fees or expenses and during the
course of the proceeding, an advocate shall, except with the consent in writing of the client
concerned, be liberty to divert any portion of the expenses towards fees. Where any amount is
received or given to him on behalf of his client the fact of such receipt must be intimated to
the client, as early as possible.in view of the above duties of the client the committee held that
the advocate had failed to discharged his duties towards the client as he neither furnished the
accounts of the recovery of the amount from different judgement debtor nor refunded the said
amounts to the client nor proved the claim of settled or unsettled fees payable by the client to
him. The committee held that the advocate guilty of having committed professional
misconduct and ordered that he be suspended from the practice for a period of one year from
the date of the receipt of the order. The committee debarred him from practicing in any court
or before any authority or person during the period of suspension.
LANDMARK JUDGEMENTS
C. K. Daphtary & Ors vs. O. P. Gupta & Ors on 19 March1
FACTS:-
This is a petition under Article 129 of the Constitution of India by Shri C. K. Daphtary and
three other advocates bringing to our notice the alleged contempt of this Court committed by
the respondents (1) 0. P. Gupta, (2) Rising Sun Press, Delhi, through its proprietor, and (3)
M/s Kanak Book Depot. Respondent No. 3-Kanak Book Depot-has not been traced.
Respondent No. 1, 0. P. Gupta, appeared in person, and the proprietor of the Rising Sun Press,
Mela Ram, also appeared in person. It is further stated in the petition that respondent No. 1
"with the deliberate design of bringing into disrepute and scandalizing this Hon'ble Court,
wrote and got printed and published, by and through Respondent No. 2, a pamphlet which
though ostensibly meant for the convenient use of members of Parliament was actually widely
circulated and was made available for sale at M/s Kanak Book Depot, P. 0. Ramsanehi Ghat,
Distt. Barabanki, U. P., Respondent No. 3." It is also stated that "the said pamphlet was, as the
petitioners believe, sold or offered for sale to the public by Respondent No. 3." The respondent
published and circulated a booklet in public purporting to ascribe bias and dishonesty to Justice
Shah while acting in his judicial capacity. Mr C.K. Daphtary, along with others, filed a petition
alleging that the booklet has scandalised the judges who participated in the decision and
brought into contempt the authority of the highest court of the land and thus weakened the
confidence of the people in it.
HELD:-
The Supreme Court, in examining the scope of the contempt of court, laid down that the test
in each case is whether the impugned publication is a mere defamatory attack on the judge or
whether it will interfere with the due course of justice or the proper administration of law by
the court.
1
1971 AIR SC 1122
2
BCI Tr. Case No. 21/1987
to the complainant and he did not furnish the account therefor. It was also alleged that the
advocate had concealed the real facts and avoided to give any information to the complainant
on some pretext or the other.
The respondent advocate said that he had not withdrawn the amount from the C.C.D. In
addition, the complainant alleged that the advocate had not paid the full court fee in civil suit
against the Dhani ram. In his reply the advocate contended that whenever the amount was
withdrawn from the CC.D, it was in the presence of the applicant and had been adjusted as per
record the amount recoverable by the non-applicant from the applicant. He further said that
the amount desired by the applicant had been taken away in the presence of her husband and
from his office. He said that after taking away the amount the applicant, she was required to
pay six hundred rupees to him but she did not pay. The contention of the advocate, that the
amount withdrawn by him from the C.C.D payable to the complaint had been adjusted towards
the court fee and the other expenses with the consent of the complainant was not find correct.
In the opinion of the disciplinary committee the advocate was to show as to how much amount
was withdrawn by him and adjusted towards his fees. he failed to discharged his burden.
Held: - 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.
3
D.C. Appeal No. 18/1999
be verified from her Reader and Steno and some other persons, who were present in the Court
and whose names could be disclosed by her, if so desired. On the aforesaid facts, she prayed
that necessary action be taken against Mr Ashok Kapoor, who is member of the Bar, for his
misconduct and misbehaviour with the Court. Pursuant to the notice issued by learned Single
Bench of this Court, Mr Ashok Kapoor appeared and prayed for time to file reply to the show
cause notice.
ISSUE: - whether in the facts and circumstances as are available before us, the respondent has
committed contempt of Court as envisaged under the provisions of the Contempt of Courts
Act, 1971?
JUDGEMENTS:- The contemnor deserves deterrent punishment, yet considering the fact that
he is a lawyer and in fact, an officer of the Court, we deal with him leniently and sentence him
to undergo simple imprisonment for a period of three months and pay a fine of Rs. 2000/-. In
default of payment of fine, he shall further undergo simple imprisonment for 15 days.
Disciplinary Committee Decision: - held that the appellant with oblique motive had filed
those cases being well aware of the fact that it was not maintainable and was frivolous. An
advocate was taking advantages of his position should not be allowed to mis-utilise of his
position as an advocate to victimize and harass general public including judicial officers.
Found him guilty of professional misconduct and ordered for removal of name from the roll
of State Bar Council under section 35(3) (D) of the advocates Act, 1961.
4
BCI Tr Case No. 12/1990
5
BCI Tr Case No. 68/1999
Facts: The respondent advocate hurled the shoes and shouted slogans in the Supreme Court of
India. Both contempt and proceedings for professional misconduct were initiated against him.
Held: The Supreme Court found him guilty for contempt of court and awarded him a simple
imprisonment for four months and fine of 2000 Rupees.
Further the DC of BCI also found him guilty of professional misconduct and ordered his name
to be removed from the roll of Bar Council of Maharashtra and Goa.
CONCLUSION
The role of the lawyers in the society is of great importance. They being part of the system of
delivering justice holds great reverence and respect in the society. Each individual has a well-
defined code of conduct which needs to be followed by the person living in the society. A lawyer
in discharging his professional assignment has a duty to his client, a duty to his opponent, a duty
to the court, a duty to the society at large and a duty to himself. It needs a high degree of probity
and poise to strike a balance and arrive at the place of righteous stand, more so, when there are
conflicting claims. While discharging duty to the court, a lawyer should never knowingly be a
party to any deception, design or fraud. While placing the law before the court a lawyer is at
liberty to put forth a proposition and canvass the same to the best of his wits and ability so as to
persuade an exposition which would serve the interest of his client and the society.
The advocate, as an officer of the Court, also has the responsibility to render services of sound
quality. Lapses in services in the nature of absence when the matters are called out, the filing of
incomplete and inaccurate pleadings – many times even illegible and without personal check
and verification, the non-payment of court fees and process fees, the failure to remove office
objections, the failure to take steps to serve the parties are not merely professional omission.
They amount to positive dis-service to the litigants and create embarrassing situation in the court
leading to avoidable unpleasantness and delay in the disposal of matters, and detrimentally
affects the entire judicial system.
Furthermore, as the officers of the court the lawyers are required to uphold the dignity of the
judicial office and maintain a respectful attitude towards the Court. This is because the Bar and
the Bench form a noble and dynamic partnership geared to the great social goal of
administration of justice, and the mutual respect of the Bar and the Bench is essential for
maintaining cordial relations between the two. It is the duty of an advocate to uphold the dignity
and decorum of the Court and must not do anything to bring the Court itself into disrepute, and
ensure that at no point of time, he oversteps the limits of propriety.
BIBLIOGRAPHY
BOOKS:
• Dr. Kailash Rai, Legal ethics accountiblity for lawyers and bench bar relations, central
law publication
• Tek Chand, The Law of Contempt of Court and of Legislature, 2nd edition, the
University Book Agency, Allhabad, 1949
WEB SOURCES:
• www.ipleader.com
• www.learningoflawblogpost.com
• http://lawmin.nic.in/ncrwc/finalreport/v1ch7.htm.
• www.flonnet.com/fl1810/18101000.htm.