TaxTMI 
TaxTMI 
1983 (10) TMI 225
X X X X Extracts X X X X
X X X X Extracts X X X X
....is Court by its order dated September 24, 1976 admitted the appeal and stayed the operation of the suspension of order. First as to the facts. The Complainants alleged various acts of professional misconduct against the appellant and Agavane. According to them, the appellant and agavane sometimes impersonated as other advocates for whom the briefs were meant and at times they directly approached the clients and adopted questionable methods charging exorbitant fees. The State Bar Council referred to four specific charges relating to them, two of impersonation as A.D. Ghospurkar and N.L. Thatte and depriving these gentlemen of the briefs meant for them. The State Bar Council held that these two charges have not been substantiated and the Disciplinary Committee of the Bar Council of India has not gone into them. Both the Disciplinary Committee of the Bar Council of India and the State Bar Council however found the appellant and Agavane to be guilty of giving improper legal advice and held the charge of professional misconduct proved, but having regard to the fact that they were junior members of the bar, the Disciplinary Committee has taken a lenient view and passed the sentence in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at they had divorced their respective spouses and expressed that they wanted to marry each other on that very day and leave Poona. His case is that they represented that the priest was insisting upon an affidavit as regards their divorce as a precaution before performing their marriage and therefore they wanted to swear an affidavit to that effect. Regarding the incident of February 22, 1974, there was a complete denial that the appellant drew up an affidavit containing a recital that Smt. Sonubai had made a gift of her lands to her grand-daughter Smt. Mangala which he handed over to her on receipt of Rs. 45 as his professional fee. The Disciplinary Committee has recorded a finding that it did not consider that the conduct of the appellant and Agavane amounted to cheating their clients, and that both were guilty of giving improper legal advice, but these were not cases of a bona fide mistake of a lawyer. With respect to the first charge, it held that they had misled their clients Potdar and Smt. Dhavale that the affidavit sworn by them before the Sub-Divisional Magistrate and the certificate of marriage issued by him would make them legally married according to Hindu rites altho....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onduct in a professional respect" on the part of a medical man in Allinson v. General Council of Medical Education & Registration, applied to professional misconduct on the part of a Solicitor, and observed: "If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General medical Council to say that he has been guilty of 'infamous conduct in a professional respect'." The Privy Council approved of the definition in George Frier Grahame v. Attorney General, Fiji and this Court in the matter of P. An Advocate has followed the same. The narrow question that remains for consideration now is whether the finding of the Disciplinary Committee as to professional misconduct on the part of the appellant can be legally sustained. The test to be applied in all such cases is whether the proved misconduct on the advocate is such that he must be regarded as unworthy to remain a member of the honourable profession to which he has been admitted, and unfit to be entrusted with the responsible dutie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llows that the public are entitled to receive disinterested, sincere and honest treatment and advice from the advocates to whom they repair for counsel and succour in their time of need; and it is for this reason that Lord Mansfield laid down, and the Court has always insisted, that members of the legal profession "should stand free from all suspicion"." Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession. For an advocate to act towards his client otherwise than with utmost good faith is unprofessional. It is against professional etiquettee for a lawyer to give that an advocate should accept employment with such motive, or so long as his client has such understanding of his purpose. It is professionally improper for a member of the bar to prepare false documents or to draw pleadings knowingly that the allegations made are untrue to his knowledge. Thus the giving of improper legal advice may amount to professional misconduct. That however may not be so by the giving of wrong legal advice. It appears to us that there was abundant evidence upon ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g to Hindu rites must have been made on their instructions. They were both anxious to leave Poona and brought a document styled as a marriage certificate obtained under s. 5 of the Bombay Registration of Marriages Act, 1953 under which even Hindu marriages have to be registered. The document was signed by both Potdar and Smt. Dhavale and also attested by one Gangadhar Laxman Jamkhedkar who claimed to have acted as the priest and said to have solemnised the marriage. There is nothing unprofessional for an advocate to draft an affidavit on the instructions of his client. The testimony of Smt. Dhavale shows that she accompanied by Potdar came to the Court of the Sub- Divisional Magistrate on January 7, 1974 at 2.30 p.m. The purpose of their visit is not very clear. At first, her version was that she told the appellant and Agavane that they wanted to have their marriage performed. She then added that they told these lawyers that they wanted to get their marriage registered. They both appeared before the Sub- Divisional Magistrate and verified the affidavit Ex. C-13 to be true to their personal knowledge. When confronted with the portion marked as "AA": "We have today married at Poon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e been conducting their affairs, which defects from the norms of professional ethics. May be, the complainants were not actuated from a purely altruistic motive in lodging the complaint but that does not fully exonerate the appellant and Agavane of the way they have been carrying on their activities. It appears from the order of the Disciplinary Committee that some 12 to 14 advocates practising in the two Courts of the Sub Divisional Magistrates in the Collectorate of Poona had formed an association called the Poona Collectorate Bar Association, the purpose of which was that the entire work in the Collectorate should be pooled together. To attain that object, the complainants employed servants for collecting work from prospective clients on a percentage of fees to be given to them and the work to be distributed among the members. It further appears that the appellant and Agvane were two junior lawyers who preferred not to become members of the association, but started their practice sitting under a tree in the Court precincts. Presumably, the gentlemen of the bar who were members of the association found that their activities a were prejudicial to their interests because they di....
X X X X Extracts X X X X
X X X X Extracts X X X X
....opinion on the impropriety of their conduct. The Preamble to Chapter II Part VI of the Rules lays down that an advocate shall at all times comport himself in a manner befitting his status as an officer of the Court privileged member of the community and a gentleman. Rule 36 of these rules provides that an advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications etc. It is a well recognized rule of etiquette in the legal profession that no attempt should be made to advertise oneself or solicit work directly or indirectly. In his 'Brief to Counsel', 5th edn., 1962, p. 94, the celebrated author Henry Cecil administered a word of caution: "Don't go touting for work in any circumstances. There are all sorts of ways of doing this. Don't adopt any of them. If you are going to get on, you will get on without doing that kind of thing, and if you are not going to get on, the little extra work you get will not either make you successful or counter-act the bad impression you will make on many people inside and outside the law." We are constrained to say that the evil of touting has been in existen....