PANDURANG DATTATREYA KHANDEKAR versus THE BAR COUNCIL OF MAHARASHTRA BOMBAY & ORS.

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PANDURANG DATTATREYA KHANDEKAR

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THE BAR COUNCIL OF MAHARASHTRA BOMBAY & ORS.

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October 20, 1983 ·

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(A.P. SEN, E.S. VENKATARAMIAH AND R.B. MISRA JJ,j

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Appellate Jurisdiction-Appeal under Section 38 of the Advocates Act, 1961-Interference by the conc.urrent finding of fact by the Disciplin"ary Commitlee of the Bar Council-Degree of proof required .Jor a_ Disciplinary Proceeding, explained.

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Advocates Act, 1961, Section 35 (!)-Professional MrsconduCt, meaning of-Distinction between giving of wrong advice and improper legal advice--The giving of improper legal advice may amount to professional misconduct.

The appellant and a_nothe.r advocate were found- guilty Of professional misconduct by the Disciplinary _Committee of the Bar Council of India by its order dated April 23, 1~7 ·. The gravamen of the charge against them related to the giving of improper legal advice on two .specific counts. The Disciplin~ry Committee held them guilty on both counts and ordered the suspensian of the appellant from practice for a period of four months and the other advoc3te for a period of two months.

· ~ ·Allowing the appeal in part, the Court

HELD: 1.1 This Court would not_. as a general rule, in an appeal . under s. 38 of ihe Advocates ACt, 1961, interfere with the concurrent findings of fact reached 'by the Disciplinary c"omrnittee of the B3r Council of India and of the .State Bar Couilcil unless they are based on no evidence or proceed on mere conjectures and surmises. Finding in such disciplinary proceedings must b~ sustained by higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in criminal · prosecu· tion. ~here should be convincing preponderailce of evidence

[419 B·Cj

2.1 The test of what constitutes "grossly improper conduct in the diScharge of professional duties" has· been laid down in many cases. The test to be applied is whether an advocate, in the purs_uit of his profession, has. done something with regard to it which woUld be reasonably regarded as disgraceful or dishonourable by his professional brethren: That is to say, whether -the proved ·misconduct of the advoc<\;te is such that he must be regarded as unworthy to remain as member o[ the honourable profession to which he has been admitted and unfit to be ·entrusted with the responsible duties that an advocate is called upon to ~erform. [419 E; ~ B·CJ

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P.D. KHANDEKAR V. BAR COUNCIL

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In re: A. Solicitor Exparte the law society [1912] 1 K.B. 302; Allinson v. General Council. of Medical Education and Registration (1984] 1 Q.B. 750; Georie Friar Grahame v. Attorney General, Fiji AIR 1936 P.C. 224 quoted with approval.

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2.l Charges of professional misconduct must be clearly proved and should not be inferred from mere ground for suspicion, however reasonable, or what may be error or judgment Or indiscretion.. r 420 CJ '

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A pleader v. The Judges of the Riih Court of Madras, AIR 1930 P.C. 144;

referred to.

2.3 There is•~ distinction fetwe~n the giving of improper IeSal advice and the giving of wrong legal advice. Mere negligence unacCompained by any moral delinquency on the part of an advocate in the exercise of hiS profession does noramount to professional misconduct. There must be proved that the advocate was guilty _of moral turpitude or that ~here was any moral delinquency on his part. [420 D-E]

. In re : G. Mayor Cooke [1S89] 33 Sol. Journal 397, quoted with approval.

In re: A Vakil !LR [1925] 49 Mad 523, ln re, An Advocate, !LR (1935]

62.Cal 158; In the matter of an Advocate of Agra ILR [1940] A!l 386 approved .

• . In the mallet of Pan Advocate (1964] 1 S.C.R. 697 applied.

For an advocate to act towards his client otherwise than with utmost good faith is u·nprofessional. When an advocate is entrusted With a brief, he is expected to follow the norms of professional ethics ~nd try to protect the interests of his Client in relation to whom be occupies a position of trust. Counsel's paramount duty is to the client. When a person consults a lawyer for his advice, he relies upon his requisite experiellce, skill and knowledge as a lawyer, and the lawyer is exp~cted to give proper and di~passionate legal advice to the client fcir the protection of his interests. An advocate stands in 3. loco parentis towards the litigants and therefore follows that the client is entitled to receive disinterested, sincere a~d honest treatment especially where the client approaches the advocate for succour in times of need. The members of the legal profession should stand free from suspicion. [421 A-C]

3.2 Nothing shOuld be done by any ~ember of ihe 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 the utmost good faith is unprofessional. It is against professional etiquette for• a lawyer to give tlfat an advocate should aCcept employment with such motive, or so long as his client has such understandirig for his purpose. It is professionally improper for a member of the .Bar to Prepafe false documents or to draw pleadings knowingly that ~he aUe~atio~~ made are untrue \9 bi~ knowledge.

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On merits, held that the .evidence adduced by the complainants falls short of the required proof although the circumstances appearing do give- rise to considerable susPicioo about the manner in ·which the advocates had been conducting their affairs. It was accordingly held that the Disciplinary Committee of the Bar Council of India erred· in holding the advocates guilty of professional misconduct. The proceedings drawn against them und_er sub-s. (1) of s 35 of · ihe Act-were accordingly dropped with an expression of hope that they would , ·not by their conduct or behaviour prove ·themselves to be unworthy to remain

as 'members of the legal pro~ession.

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CIVIL APPELLATE JURISDICTION : . Civil Appeal No. 72-0 of

1976 ..

Appeal urtder section 38 of the Advocates Act, 1961 from the

Order dated the 23rd April, 1976 of the Disciplinary Committee of the Bar Council oflndia in D.C. Appeal No, 11 of 1975.

V.J. Francis for the Appellant ..

V.N. Ganpule and Mrs. V.D. Khanna for the Respondent

No. I.

S. V. Tambekar for the Respondent.

The Judgment of the Court was delivered by

SEN, J. The disciplinary proceedings out of which this appeal ~nder s. 38 of the Advocates Act, 1961 ('Act' for. short) has arisen were initiated on a complaint made by a group of 12 advocates practising in the two courts of Sub-Divisional Magistrates in the Collectorate of Poona alleging varjous acts of professional miscon duct against the appellant P.D. Khandekar and one A.N. Agavane. The proceedings .stood transferred to· the Bar Council of India under s. 36B of the Act. The Di~sciplinary Committee of the. Bar Council of . India by its order dated April 23, 1976 held both the appellant and A.N. Agavane guilty of professional misconduct and directed that the appellant be suspended for a period of four months from June I, 1976 and Agavarie for a'period of two m~nths therefrorp. This Court by its order dated September 24, 1976 admitted the appeal and stayed the operation of the suspension of order.

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First as to the facts. The complainants alleged various acts of profession~! misconduct against the appellant and Agavane. According to them, the appellant and agavane sometimes impersonated as other advocates for wbom the briefs were me~qt ;ind at times they directly

P.D. KHANDEKAR v. BAR COUNCIL (Sen, J.)

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approached the clients and adopted questionable inertiods charging exorbitant fees. The State Bar Council referred to four specific charges rel~ting to them, two of impersonatiOn as· A.D. Ghospurkar and N.L. Thatte and depriving these gentlemen of. the briefs meant for them. The Slate 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 or India and the. State Bar Council however found the appellant and Agavane ·to be guilty of giving improper legal advice and held the c)large of professional misconduct proved, but having regard to the fact that they were Junior member.s · of the bar, the Disciplinary Committee has taken a lenient view and In dealing with the question of passed the. sentencdndicated above. punishment to be imposed on them, tlie Disciplinary Committee observes :

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"We take into consideration the age of the advocates, · the families they ·have to maintaill, the environments in which they practise and the standard which is maintained in such an environment is not very high as \he 'Bar Association Rules.' certify toutisni a,nd· provide for toutism which could be unthinkable anywhere else." .

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The gravamen· of the charge against the appellant and Agavane ·

relates to the giving of improper legal advice on two specific counts, namely: (1) On January 7, 1974 the appellant and Agavane are alleged to have got the remarriage of a couple S.B. Potdar and Smt. Leelawati' Dhavale performed altho.ugh their divorce was not legal. The accusation is that the appellant and Agavane induced Potdar and 1 Smt. Dhavale to part with Rs. 100 towards their professional fee on the faith of an assurance that the affidavit sworn by them ·before the Sub-Divisional Magistrate, Poona to .the effect that they had divorced their respective spouses and had got married at Poona on January 7, 1974 as.per Hindu rites would be sufficient proof of their marriage. (2) On February 22, 1974 the a,ppellant and Agavane drew up an affidavit containing a recital that Snit Sonubai Girju Valekar of Loni Bhapkar, Tehsil· Baramati, District Poona had· made a gift of , her lands to her grand-daughter Smt. Mangala Ramesh Ghorpade. The charge is thaf she had met all the lawyers except these two and alf of them advised her to .give the market value of the land intended. to be gift.ed. and pay ad valorem stamp duty thereon indicating tl)e a!Pount of stamp dutr and the registratio~ char~es pa~able, but t~es~

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two lawyers told her that she should not unnecessarily .spend a large amount over the stamp duty and registration charges and they· would instead have the work done within an amount of Rs .. 50 which was · finally settled at Rs. 45. The charges levelled aga\!'st the appellant and Agavane are serious enough and if true in a case "like the present, · the punishment has to he deterrent, but the question still remains whether the"charges have been proved.

The appellant virtually pleads that the case against him. is. a

frame-up. As to the incident 6f January 7, 1974, the appellant . plead&; ·that the affidavit sworn by Potdar and Smt. Dhavale was prepared on their instructions as they represented that. they had divorced their respective spouses and expr~ssed that they wanted to. marry each other on that very day and leave Poona. His case is thal they represented that the priest was insisting upon an affidavit as regards their divorce as a precaution before performing their marriage and t.herefore 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 their clients Potdar and .Smt. Dhavale that the affidavit misled sworn by them before the Sub-Divisional Magistrate and the certi· ficate of marriag;e issued by him would make them legally married according to Hindu rites although no marriage was ever performed. As regards the second charge, the Disciplinary Committee held them to be guilty of not giving proper legal advice to their client Smt. . Sonubai. It observed that if the gift deed could not be executed because Smt. Sonubai had no sufficient funds to bear the cost of stamp duty and registration charges payable, the affidavit was no substitute for that as 'it would hardly be evidence of a gift. . It further observed that it was unfortunate that the appellant an Agavane did not advise Smt. Sonubai also to· execute a will contemporaneously in favour of her grand-daughter Smt. Mangala because if the affidavit · were supplemented by an unregistered will, nothing would be wrong.

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P.D. KHANDEmAR v •. BAR cbUNCIL (Sen, i/.)

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'It proceeded upon the view that the affidavit could be taken as evidence that Smt; Sonubai had handed over possession of her pro- perty to her grand-daughter. Smt, Mangala and if the latter possessed ·it for l2 years she would acquire title by prescription and although the will may not be a deed of gift, ii would be the nearest approach . to it.

In an appeal under s. 38 of the Act this Court would not, as a general rule, interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and the State Bar Council unless the finding is based on no evidence or it proceeds on mere conjectures. and. surmises. Finding in such disciplinary proceedings must b~sustained by a higher degree of proof than that required in civil suits, yet falling short of th.e proof required to sustain a conviction in a criminal prosecution. There should be convincing preponderance of evidence.

It is argued that the finding as to professional misconduct on· the part of the appellant ancf Agavane reached by the Disciplinary Committee was not based on 'any legal evidence but proceeds on mere conjectures and surmises. The case against the appellant and Agavane rests upon profussional misconduct and not any other con duct. The question is whether tllere was any evidence upon which the Disciplinary Committee could reasonably find that they have been guilty of 'professional misconduct, within the meaning of sub-s. (I) of s. 35 of the Act~ The test of'what constitutes "grossly improper conduct in the discharge of professional duties" has been laid down in many cases. In the case of in re A Solicitor Ex parte the Law Society,(') Darling, J. adopted the definition of "infamous conduct in a professional respect" on the part of a medical man in Al/inson v. General Council of Medical Education & Registration,(') applied to· professional mis~onduct on the part of a Solicitor, and observed ;

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''If it is showri 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 dishcino- · urable by his professional brethren of good. repute and· competency, then it Is open to the General medical Council to s.ay'that he has been guilty of 'infamous conduct in a professional respect'."

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(l.)[IPl21 I KB 302. (2.) (18941 I QB 750.

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The Privy Council approved of the definition in George Frier Grahame v. Attorney General, Fiji(1) and this Court in P. An Advocate(') has followed the same.. The narrow question that remains for consideration now is whether the finding of the Disciplin- ary 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 ~f the advocate is such that he must be regarded as unworthy to remain .i"'niember of the hono' urable profession to which he has been admitted; and unfit to b~ entrusted. with the responsible duties that an advocate is called upon to perform. The Judicial Committee of the ·Privy Council in A, a Pleader v. The Judges of the High Court of Madras(') laid down that charges of professio.nal misconduct must be clea,ly proved and should not be inferred from.mere ground for suspicion, however reasonable, or what may be error of ju.dgment ·or indiscretion.

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There is a world of difference between the giving of improper . legal advice and the ~iving of wrong !\;al advice. Mere negligence unaccompained by any moral delinquency on the part of a legal practitioner ill the exercise of his profession does not amount to ·professional .misconduct. In re· A Vakil,~) Coutts Trotter, C.J. followed the decision in re G. Mayor Cooke(') and said tha.t :

"Negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency.. Of there and we are case to investigate, and that no reflexion adverse to his · professi~nal honour rests upon Mr. M.'~

therefore able to say that ·there is no

is ·no ;suggestion here, .

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The decision was followed by the Calcutta High Court in re An Advocate,(6) and by the Allahabad High Court in the matter of An Advocate of ilgra(') and by this court in the matter of P. An Advocate.(')

(I) AIR [19J6] PC 224. (2) [1964] I S.C.R. 697. (3) AIR [1930] PC 144. (4) !LR [1925] 49 Mad. 523. (5) [1889] 33 Sol. Jour. 397 . . (6). ILR [1935] 62 Cal.'158.

(7) !LR [1940] All. 386 (8) [1964] I S.C.R. 697.

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P.D •. mIANDEKAR V. BAR COUNCIL (Sen; J.)

421

For an advocate to act towards his client otherwise than with utmost good faith is unprofessional. When an advocate is ·entrusted with a brief, he is expected to follow norms ,<if professional ethic;s and try to protect the interests !Jf his 'client in relation to whom. be occupies a position of trust. Counsel's paramount duty is to the client. When a person consults a lawyer for his advice, he relies upon his requisite experience, skill· and knowledge as a lawyer and the lawyer is expected to give proper and. dispassionate legal advice to the client for the protection of his interests. An advocate stands in a loco parentis towards the litigants and it· t~erefore follows that ·the client is entitled to· receive disinterested, sincere and honest treat ment especially where-the client approaches the advocate for succour in times of need. The members of the legal profession should stand free from suspicion. ln the matter of P. An Advocate,(') Page, C.J. in . an oftquoted passage after extolling the ideals that an advocate ought to set before him, and the ancient and noble conception of his office, observed :

"From this conception of the office·of an advocate it follows that the public are entitled to receive disinterested, sincere and honest treatmimt and advice from the advo cates to whom they repair for counsel and succour.in their time of need; and. it is for this reason thai Lord Mans field laid down, and the Court has always insisted, that members 'of the legal profession "should stand free from all suspicion"." .

. Nothing should he done by any member ~f the legal fraternity vvhich might tend to lessen in""any degree the. confidence of t)le public in the fidelity, honesty and integrity of the profession. ; For an -advocate to act towards his client otherwise than· with utm~st 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.

(I) ILJ,l [1933] 12 Rang. !IQ'

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It appears to us tha'.t there was abundant evidence upon which the Disciplinary Committee could find the appellant and Agavane guilty of giving wrong ~egal advice, but there· is considerable doubt whether upon such evidence the charge of>professional misconduct In the instant case, it is not at all certain that can be· supported. it can be said with strict accuracy that the appellant was guilty of moral turpitude or that there was any moral delinquency on his par!.

As to the·first charge, the Disciplinary Committee has found the appellant ·and Agavane'to be guilty of drawing up a false affidavit to the effect that Potdar and Smt. Dhavale had been married at Poona on January 7, 1974 according to Hindu rites although no such marriage was ever performed. Upon the evidence on record, it is difficult to believe that Potdar and Smt. Dhavale could be prevailed upon to swear an affidavit of the kind unless it was prepared on their instructions .or that they· were induced. to part with Rs. 100 towards the professional fee of the appellant and Agavane on- tlje faith of. a false assurance that the affidavit would be sufficient evidence in proof of their marriage. Potdar was an Overseer and had put in an adver· tisement inviting suitable proposals for his marriage. Smt. Dhavale held a Diploma in Education and had been working ,as a Teacher in a Primary School under the Zita Parishad, Satara. She had also • advertised in the papers seeking suitable proposals for her marriage. Both of them corresponded with each other and decided to get ma,trie'd and for this purpose they came to Poona on January 7, 1974 for legal advice With respect to their marriage. Incidentally, Smt. Dhavale who is a tribal woman claims to have got a divorce by cus· tom prevalent among her tribe, wl\l'reas Potdar ytho was married earlier ·according to Hindu rites presumably got his divorce by initiating proceedings under the Hindu Marriage Act, 1955. They both approached the appellant and Agavane and wanted their legal advice and stated that they wou1d like to get married and leave Poona on the same day or, in other words, they were in a hurry to get married.. Ex. C·13 which inter alia states:

"We have today married at Poona as per Hindu rites" was drawn up by the appellant and Agavane and signed by both the parties before the Sub-Divisi<?nal Magistrate in English after reading the contents. The ·recital in the affidavit that they got married at · Poona on January 7, 1974 according to Hindu rites must have been made on their instructions. They were both-anxious to leave Poona

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P.D. KHANDEKAR v. BAR COUNCIL .(Sen, J.)

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a11.d brought a document styled as a marriage certificate obtained under s .. 5 of the Bombay Registration of Marriages Act, !.953 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. Dhav.ale 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 their marriage performed. She Agavane that they wanted to have . then added that they told these lawyers that they wanted to get their the Sub-Divisional marriage registered. They both appeared before 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.a as per Hindu rites", she asserted that she and Potdar had not been married according to Hindu rites at Po~na on January 7, 1974 or at any time thereafter. She however states that she was living with Potdar as she was under the belief that she had been married to him. The fact remains t)l.at It . is rather she has also changed -her surname to Smt. Potdar. . improbable that a Hindu lady· like Smt. Potdar would start living . with a stranger as husband and wife and atso adopt a new surname. unless there was a marriage. Both of them were educated persons .and they had the power to understand what they were doing and therefore they being the executants of the affidavit must be held ·bound by the recitals contained therein. The oral evidence adduced· by the ·complainant was not sufficient to rebut the presumption the other circumstances arising from ihe recitals coupled with appearing.

The evidence with regard to the second charge, namely, that the appellant and Agavane were guilty of aot giving proper legal advice to Smt. Sonubai is even less convincing. It is quite possible that this · old illiterate lady aged about 90 years came to the Sub-Divisiobal Magistrate's Court with. the purpose of executing a gift deed in favour of her grand-daughter Smt. Mangala. There is however no real or substantial evidence to con(\ect the appellant with the affidavit. The testimony of smt. Sonubai is wholly inconclusive as to the identity .

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oft'1e perso~ who prepare<! ~he affidavit. She states in h~r exantlna• tion in-chief that she had entrusted the work of execution of the gift deed to.two advocates and that they represented to her that the affidavit. was a- gift deed, but added that she. would not lie also.to identify them .. becanse she had a weak eye-sight arid was a. !so hare\ of hearing for the last 2/3 years and was not able to see or hear properly. She further unequivocally a'dmitted that she never . approached tlie appellant ·at any time for. any work: . It is . difficult to support the charge . of professional misconduc1: agilins(the appellant on such evidence.

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It must accordingly be held that the Disciplinary Co~~ittee of the Bar Council of·India.erred in 'holding the appellant and 'Agavane C · _ guilty of professional misconduct because the evidence. adduced by · the complainants falls short of the required·. proof, . but· the .. circums

tances appearing do give 'rise to considerable suspicion. about the . manner in which they have 'been' conducting their 'affairs, which'; · deflects from the norms of professional· ethics. · ·

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May be; the compiainants. were not ·actuated from a purely altruistig motive in 19dging 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 Disciplin- .. ary Committee that some 12 to 14 advocates practising in the two . Courts of the Sub-Divisional Magistrates in the Coll;ctorate of Poona. had formed an association called the Poona Collectorate Bar Associ- ' ,_ - ' · ati~n, the purpose of which was that the entire work,· in "_the ·' _

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Collectorate should be pooled together. · To . attain that· object, the . complainants employed servants for collecu'ng work from prospective client; on a percentage of fees to be giveu to .them and the work to· be distributed am orig the members. It further appears that the appellant .. : . and Agvane were two JUnior'Jawyers who preferred not to become-. - members ofihe. association, but:started their practice sitting under a·· · tree in the Court precincts. Presumably, the gentlemen - of the liar who were member;. of the 'association found that theft' activities were prejudicial to their Interests because they directly got in touch ~- ·- - with the _clients and did the same kind of .work . with impunity by .. · adopting similar questionable" methods. We can only express the , . hope that these law_yers will; in future, see to it thai'_ such improprie- . ties as those referred to do ·not recur. · ·

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Th~ Discipliiiary Commiitee ~peaks of· the ~'environments" in . _ which.these lawyers work; The complainants have ·examined· four . advocates. to substantiate . the charge against the . appellant . arid

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P.D. KHANi:>EKAR v. BAR COUNCIL (Sen, J.)

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Agavane vii. A.D. Ghospurkar, N.L. Thatte, T.S. Pariyani and V.A. Mandake. The evidence of these lawyers shows that their work mainly consists in attestation of witnesses. Their . appearnce in cases were few and far between .. They either sit in the verandah near the · stamp-vendor in front of the Sub-Registrar's· office or in the Court compound with the petition-writers or typists. To illustrate this,· A.D: Ghospurkar, who is an advocate·of 8 years'· standing, frankly admits that his main work is io indentify parties who come to make affidavits before the Sub-Divisional Magistrates and that his work of · conducting cases i~ negligible. During his 8 years at the bar, he has done near about IO to 12 chapter cases and about 8 cases in other. courts. The case presents a dismal picture of ·the· legal profession. We mean no disrespect to the members of the Poona C.ollectorate Bar. The conditicin.s prevalent are more or Jess the same everywhere and it" is a matter of deep concern that nothing has been done to organize the bar.

We regret to say that the complainants the~selves are ·not free from blemish. The Disciplinary Commi1tee of the Bar Council of India observes that . the method adopted by ihe 'complainants to procure work by employing agents itself all)ouqts. to professional It deprecate~. the practice that is prevalent at the Poona misconduct. · Collectorate Bar· and observes w'iih regard to the complainants :

"This means that the putpose of the Association • was

· to appoint certain touts who would get work for their . . members ·and then the work will l)e .distributed among the members. Touting or appointing touts is not consistent with the rules framed under the Advocates Act ~nd such practice would be considered professional .misconduct but that is exactly what the Bar Association referred to above intend to do,"

We are informed that disciplinaFy proceedings have since been . initiated against the complainants and therefore we refrain from 'expressing any opinion on the impropriety of _their cond~ct:

·The Preamble to Chapter Ir Part VI of the Jlules lays down that an advocate shall at· all times comport himself in a trianilei befitting his status as an officer of the Courl privileged member of the

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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 : •

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"Don't go touting ·for work in any · circumstances. 'There are a1l 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 snccessful or counter-act the bad impression you will make on many people inside and outside the law."

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We are constrained to say that the evil of touting has been in existence since ancient times and still is a growing menance, and the bar is open to the accusation of having done nothing tangible to eradicate this unmitigated evil. The persons most affected . by this system are the junior lawyers as· a class. Some law~ers may well expound unblushingJy. the doctrine of getting on, getting honour and at last' getting honest. If it is generally known that a person however honest has got on and got honour through the patronage of touts, the bar should decline to show such a man any honour .or conside . ration whatsoever: We impress upon the Bar Council of India and the State Bar Councils that if they still take strong action t0 eradicate , this evil, it would lead to a high standard of propriety and professional rectitude which would make it impossible for a tout to turn a penny within th.e precincts of the law courts .

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Finally,'it is the solemn duty of the Bai Council q( India and the State Bar Councils to frame proper schemes for the training of the junior members of the bar, for entrusting of work to .them, and. for their proper guidance so that eventually we have new generation of efficiently trained la~yers. It is regrettable that even after. more than two decades that the Advocates Act was brought on the Statute Book; neither the Bar Council of India. nor the State :Bar Councils

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P.D. KHANDEW v. JIAR couNCU: (Seii,J.)

. 427

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have taken any positive steps towards ameliorating the conditions of · the members of the bar, particularly of the junior members.• . Sub-ss. (3) of ss. 6 and 7 of the Act provide that the State Bar Councils and the Bar Council of India may constitute one or more funds in the . prescribed manner for th~ purpose of (a) giving financial· assistance to organised labour welfare schemes for the indigent, disabled or other advocates, and (b) giving legal aid 'or advice in accordance with the rules made'that behalf .. ·. Sub-ss. (3) thereof provide that they·may receive any grants, donations, · gifts or. benefactions for the above purposes, which shall be credited to th.e appropriate fund. or funds·: under that sub-section. The Bar Council of India and the State Bar - Councils hold very large funds, may be to the tum~ of rupees one crore and above, but no positive steps have been taken in organizing the legal profession and safeguarding the interests of lawyers in general, parti· - · cularly the juxiior members of the bar. · It is with· a deep sense of anguish that one finds the legal profession in • a state of total disarray ·and for the majority it is.a• continuous struggle . for existence, . The · · hardest hit arc the junior members. We expect that the matter wm · D receive the attention that it deserves.

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In the result, the appeal partly suceeds and is allowed. The order

of the Disciplinary ,C?mmittee of the Bar Council of India holding ·

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- the appellant and A.N. Agavane guilty of professional misconduct is set aside .. The proceedings drawn against them ·under sub·s. (I) of s. 35 of the Advocates Act, 1961 are.dropped. We hope and trust that they would not by their condu~t or behaviour prove themselves to be unworthy to remain as members· of the grea.t profession "to · which they belong. .

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There shall be no order a·s to costs. ·

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. • .. Appeal partly allowed . .

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