PANDURANG DATTATRAYA KHANDEKAR V.

BAR COUNCIL OF MAHARASHTRA

[AIR 1984 SC 110]

(Case Analysis submitted towards assessment in the subject of Legal & Professional Ethics)

SUBMITTED TO: SUBMITTED BY:

MR. OM PRAKASH GAUTAM ANKITA YADAV
ASSISTANT PROFESSOR SEMESTER IX (1304)
NLU JODHPUR B.A. LL. B. (HONS.)

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION
(JULY - NOV 2019)
 CONTENTS

Introduction ................................................................................................................................ 3

Facts Of The Case .................................................................................................................. 4

Issues Raised .......................................................................................................................... 5

Relevant Legal Provisions ..................................................................................................... 5

Judgment ................................................................................................................................ 6

Conclusion ................................................................................................................................. 9

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 INTRODUCTION

Throughout history, humanity has struggled with those aspects of our values and beliefs that
concern the morality of our conduct - what is right and wrong, good and bad, acceptable and
unacceptable behaviour. As values change and society attempts to cope with a myriad of
problems, many prompted by development in science and technology, new ethical issues
emerge and old ethical issues must be revisited. No other profession touches human life at so
many points than law. The people engaged in this profession while performing their
professional duties not only earn their livelihood, but also influence the lives and conditions of
life of many. A lawyer while lawyering, an advocate while doing advocacy is no doubt making
his own fortune, but in addition to that his art of lawyering, his techniques of advocacy, his
skills of argument, his scientific treatment to the law and the facts in hand cast definite shadows
on the conditions in society, lawyers make the most significant contribution to the final
outcome of justice system that is the court verdicts and judgment which ultimately shape the
future path of our society. The role of the lawyer is very central to the very vital organ of the
state that is judiciary.

A profession which is performing such vital service to the society must also be expected to
conduct itself to come up to the expectations of the society. His professional conduct must be
above board. A deviance on the part of the individual members of the legal profession has a
bearing on the interest, lives and conditions of the life of the members of the society. Therefore,
the society has an interest in the manner of regulation of the deviations, deviances and
delinquencies in the profession conduct of this profession. To meet this interest, the standards
of profession conduct called the legal ethics serve as instruments to regulate the professional
conduct. Law's nobility as a profession lasts only so long as the members maintain their
commitment to integrity and service to the community. The Advocates Act, 1961 as well Indian
Bar Council are silent in providing exact definition for professional misconduct because of its
wide scope, though under Advocates Act, 1961 to take disciplinary action punishments are
prescribed when the credibility and reputation on the profession comes under a clout on account
of acts of omission and commission by any member of the profession.1

1
Professional misconduct of lawyers in India available at http://www.legalservicesindia.com/article/1665/Professional-
misconduct-of-lawyers-in-india.html.

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PANDURANG DATTATRAYA KHANDEKAR V. BAR COUNCIL OF INDIA & ORS

FACTS OF THE CASE

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.
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 although their divorce was not legal.
The accusation is that the appellant and Agavane induced Potdar and 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.
On February 22, 1974 the appellant and Agavane drew up an affidavit containing a recital that
Smt. 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 that she had
met all the lawyers except these two and all of them advised her to give the market value of the
land intended to be gifted and pay ad valorem stamp duty thereon indicating the amount of
stamp duty and the registration charges payable, but these 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.
Group of 12 advocate practicing in two courts of S.D. Ms in the collectorate of Pune are the
complainants both the state bar council and Bar Council of Delhi through its disciplinary
committee found the appellant and one Agvane Guilty of giving improper legal advice and held
the charge of professional misconduct provided the and suspended the appellant for a period
of 4 months and Agvane for a period of 2 months therefrom. Hence, an appeal was preferred.

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ISSUES RAISED

1. Whether appellant has committed professional misconduct or not?

2. Was the order of the disciplinary committee of the Bar Council of India justified in holding
the appellants guilty of the professional misconduct and punishing them for the same?
3. WWhether there lies a difference between giving wrong legal advice or improper legal
advice and whether an advocate can be held guilty for misconduct while giving such
advice?

RELEVANT LEGAL PROVISIONS

1. Section 35(1) of the Advocates Act, 1961 provides as under:

“35. Punishment of advocates for misconduct — (1) Where on receipt of a complaint or

otherwise a State Bar Council has reason to believe that any advocate on its roll has been
guilty of professional or other misconduct, it shall refer the case for disposal to its
disciplinary committee.

(1A) The State Bar Council may, either of its own motion or on application made to it by
any person interested, withdraw a proceeding pending before its disciplinary committee
and direct the inquiry to be made by any other disciplinary committee of that State Bar
Council.

2. Section 38 of the Advocates Act, 1961 provides as under:

“38. Appeal to the Supreme Court.—Any person aggrieved by an order made by the
disciplinary committee of the Bar Council of India under section 36 or section 37(2)[or the
Attorney-General of India or the Advocate-General of the State concerned, as the case may
be,] may within sixty days of the date on which the order is communicated to him, prefer
an appeal to the Supreme Court and the Supreme Court may pass such order 1[(including
an order varying the punishment awarded by the disciplinary committee of the Bar Council
of India)] thereon as it deems fit:

Provided that no order of the disciplinary committee of the Bar Council of India shall be
varied by the Supreme Court so as to prejudicially affect the person aggrieved without
giving him a reasonable opportunity of being heard.

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JUDGMENT

 The finding that the appellant is not guilty of professional misconduct.

 The sentence awarded by the disciplinary committee of the bar council of India suspending
the appellant for a period of 4 months and Agvane for a period of 2 months is set aside.
The proceedings drawn against them under Sub-section (1) of Section 35 of the Advocates
Act, 1961 are dropped.
 Mere negligence unaccompanied by any moral delinquency on the part of a legal
practitioner in the exercise of his profession does not amount to professional misconduct.
 For an advocate to act towards his client otherwise than with utmost good faith is
unprofessional. 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 follow norms of
professional ethics, give proper and dispassionate legal advice to the client for the
protection of his interests.
 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 etiquette 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.

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 ANALYSIS OF THE JUDGMENT

In appeal, the supreme court observed that there is a difference between the giving of improper
advice and giving of wrong legal advice. Mere negligence unaccompanied by any moral
delinquency on the on the part of legal practitioner in the exercise of profession does not
amount to professional misconduct.

In para 8 of the judgment the apex court made reference to the re G. Mayor Cooke [1889] 33
Sol. Jour. 397 in which it was held that “Negligence by itself is not professional misconduct;
into that offence there must enter the element of moral delinquency. Of that there is no
suggestion here, and we are therefore able to say that there is no case to investigate, and that
no reflection adverse to his professional honour rests upon Mr. M.”

In Para 9 of the judgment, the apex court highlights importance professional conduct and ethics
by placing reliance on P. An Advocate ILR [1933] 12 Rang. It was held in the judgment that
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 of
professional ethics and try to protect the interests of his client in relation to whom he occupies
a position of trust. Counsel's paramount duty is to he 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 loco parentis towards the litigants and it therefore follows
that the client is entitled to receive disinterested, sincere and 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.

In Para 11 of the judgement the apex court had reached a conclusion by analysing all the facts
and held that hat there was abundant evidence upon which the Disciplinary Committee could
find the appellant and Agavane guilty of giving wrong legal advice, but there is considerable
doubt whether upon such evidence the charge of professional misconduct can be supported.
Furthermore, the supreme court said that, it is not at all certain that it can be said with strict
accuracy that the appellant was guilty of moral turpitude or that there was any moral
delinquency on his part. The Judgment is correct and clears the law. In arriving at the
conclusion, the reasoning given by the court is fairly consistent with the existing law.

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Finding of the Court on First charge

The First charge was that the appellant was 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. The affidavit was signed by both the
parties before the sub divisional magistrate. It stated that “we have today married at Poona as
per Hindu rites”. They both appeared before the Sub-Divisional Magistrate and verified the
affidavit Ex. C-13 to be true to their personal knowledge. They were both anxious to leave
Poona and brought a document styled as a marriage certificate obtained Under Section 5 of the
Bombay Registration of Marriages Act, 1953 under which even Hindu marriages have to be
registered
Analyzing the evidence of record, the Court observed that it is difficult to believe that Potdar
and Smt. Dhavale could be made upon to swear an affidavit of the kind unless it was prepared
on their instructions. Further, the Court held that there is nothing unprofessional for an advocate
to draft an affidavit on the instructions of his client. Further, the Court relied on certain facts
to say that the appellant prepared the false affidavit upon the instructions of their client.
However, the concern is whether drawing up of false affidavit even upon the instruction of
parties amounts to professional misconduct when the advocate knows that the statement in the
affidavit are false.
One of parties, Smt. Dhavale stated that she was living with Potdar as she was under the belief
that she had been married to him. The fact remains that she has also changed her surname to
Smt. Potdar. Upon this assertion, the Court made a very bizarre statement with paternalistic
undertones that “it is rather improbable that a Hindu lady like Smt. Potdar would start living
with a stranger as husband and wife and also adopt a new surname unless there was a marriage.”
It relied upon the fact that both of he parties 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. Thus, it held that the the oral evidence adduced
by the complainant was not sufficient to rebut the presumption arising from the recitals coupled
with the other circumstances appearing.

Finding of the Court on Second charge

As regards the second charge, the Disciplinary Committee held the appellant 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

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and registration charges payable. The evidence with regard to the second charge was found to
be unconvincing by the Court.
The Court observed that it is quite possible that this old illiterate lady aged about 90 years came
to the Sub-Divisional 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 connect
the appellant with the affidavit. She stated that she would not be able to identify them because
she had a weak eye-sight and was also hard of hearing for the last 2/3 years and was not able
to see or hear properly.
Finally, the Court found that there was abundant evidence upon which the Disciplinary
Committee could find the appellant was guilty of giving wrong legal advice, but there is
considerable doubt whether upon such evidence the charge of professional misconduct can be
supported. In the instant case, it is not at all certain that it can be said with strict accuracy that
the appellant was guilty of moral turpitude or that there was any moral delinquency on his
part.

The testimony of smt. Sonubai is wholly inconclusive as to the identity of the person who
prepared the affidavit.

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

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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.

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