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In Re: An Advocate v/s Unknown: Advocate's Failure To Pay The Decree-Holder

An advocate is a responsible, fortunate, and wise person who works in the noble profession of advocacy. An advocate's actions serve as examples for the society that needs to be regulated. Professional misconduct is conduct that falls beyond of what a profession's regulating body deems appropriate or deserving of its members. If an advocate engages in misconduct, the Court, a third party, or the Bar Council of India may file a complaint. Either the State Bar Council or the Bar Council of India receives complaints. In this case, an advocate professional negligence while carrying out his duties is discussed.

The attorney allegedly neglected to pay the decree-holder, according to a petition submitted by the complainant. The Kerala High Court heard the complaint and discovered that the Advocate withdrew the Rs. 270/- that had been placed in the case by the judgment-debtor for payment to the complainant-decree-holder in accordance with the Debt Relief Act but had failed to do so in spite of repeated demands and a registered notice sent through counsel. According to the Court's ruling, "It is the imperative duty of the counsel to inform the client of receipt of the client's funds and to promptly pay him the amount under receipt."

The learned Munsiff of Pathanamthitta, whose court the advocate is reportedly working in, suspended the advocate from practicing law for six months beginning on the date a copy of this order was served on him for the counter-petitioner's failure to fulfill this duty.

Primary Details Of The Case
Case No.: Professional Misconduct Petition. No. 2 of 1960
Jurisdiction: Kerala High Court
Case Decided On: February 8, 1961
Judges: Justice M Ansari, Justice T C Raghavan, Justice M Madhavan Nair
Legal Provisions Involved: BCI Rules, Rule 27 - Chapter II, Debt Relief Act

Brief Facts Of The Case
In Re: An Advocate v. Unknown, the complaint was filed by the client, the decree-holder [Petitioner] in the Changanacherry Munsiff's Court against the Advocate [Counter-petitioner] who was involved with the client's case. The petitioner raised an allegation that the Advocate had withdrawn Rs. 270/- deposited by the judgment-debtor for payment to the client as per the Debt Relief Act, but has not paid the same to the complainant despite repeated demands and a registered notice through counsel.

In the later investigation, it was found that the date when the counter-petitioner withdrew the amount from the court was not disclosed by the petitioner. However, the counter petitioner admitted that he was issued a receipt of a notice demanding the money by the complainant on February 26, 1959 and that he paid the amount on December 12, 1959 even after the complaint before the Bar Council was filed by the decree-holder on June 24, 1959.

The retention of the client's money by the counter-petitioner even after demand by the client for a period of more than 9 months had no excuse whatever and was quite unbecoming of the Advocate. It was noted that there was no due fee to the Advocate by the client.

Issues Involved In The Case
  1. What is the quantum of punishment to be imposed on the counter-petitioner?

Arguments Of The Parties
The learned District Judge of Quilon was referred to do the inquiry for this complaint. His report concluded that the counter-petitioner was guilty of misappropriation of his client's money even though the misappropriation was only temporary. In reference to the matter of S. An Advocate, 1937 Mad WN 1322 (FB), he quoted, "The fact that the misappropriation is only temporary does not lessen the offense or the gravity of the misconduct."

Therefore, he recommended that appropriate action may be taken against the counter-petitioner. The court noted that since nothing was brought out in the discussion before this Bench to satisfy that this finding was in any way incorrect, the court accepted the finding of the learned District Judge in the matter.

Legal Aspects Involved In The Case
Rule 27 of the BCI Rules-Chapter II, Part-VI, Section II (Duty to the Client), Rules on the professional standards that an Advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have been placed there under section 49(1) (c) of the Advocates Act, 1961. Rule 27 states:

"Where any amount is received or given to him on behalf of his client the fact of such receipt must be intimidated to the client as early as possible."

Judgement In Brief
  • The Kerala High Court suspended the counter-petitioner for a period of six months, for non- fulfillment of this duty under Rule 27 of the BCI Rules- Chapter II.
     
  • While deciding the case, the court viewed that the cases of professional misconduct cannot be viewed as cases for recovery of money or breach of contract. The court is bound to uphold the high and rigid standard of professional conduct expected of a legal practitioner who, because of their privileged status, are bound to conduct themselves in a manner befitting the high and honorable profession to whose privileges they have been admitted; and if they depart from the high standards which the profession has set for itself and demands of them in professional matters, they are liable to disciplinary action.
     
  • In observation to matters In re 'M' an Advocate, (S) AIR 1957 SC 149 and Ratnamma v. Abdul Khader, AIR 1959 AP 135, the Kerala High Court stated that it will watch zealously the professional activities of advocates enrolled by it; and if, in any case, it is established that an advocate, instead of discharging his duties faithfully like a person of trust and honor, has betrayed the trust in consequence of which a client has been, constrained to adopt proceedings for misconduct against his own counsel, such advocate will be dealt with severely. The members of the legal profession should stand free from all suspicion.
     
  • The court held that it is the imperative duty of the counsel, on receipt of the client's money, to inform the client thereof and pay him without any delay the amount under receipt.

Commentary
Advocate conduct is discussed in Chapter V of the Advocate Act of 1961. It explains the provisions that govern the punishment of professionals and other infractions. In general, the legal profession such as advocacy is not a trade or a business; rather, it is a noble act for society. Members of this profession should not promote fraud or corruption, but rather work to ensure that their clients receive justice.

The way members of the legal profession handle themselves determines the profession's prestige and reputation. It's a representation of a positive relationship between the Bar and the Bench. Due to the broad nature and scope of professional misconduct, neither the Advocates Act of 1961 nor the Bar Council of India provides a precise description as to what is professional misconduct.

However, the Advocates Act of 1961 provides for disciplinary action when the integrity and prestige of the profession are jeopardized as a result of acts of omission and commission by any member of the profession. Every lawyer owes it to his or her client to defend him or her to the end of the legal process. Normally, an advocate's actions impact only his clients, but in certain cases, people who are personally injured by an advocate's actions or omissions may file a lawsuit against the advocate. Many jurisdictions accept an advocate's responsibility to a disgruntled beneficiary.

The legal profession would not authorize an advocate to absolve himself of responsibility in the event of a service failure. Such actions are forbidden by law if a legal professional contract out his responsibility for deficiency in services. The law forbids such practices to protect the interests of clients from unprincipled legal professionals.

Important Cases Referred
  • In re 'M' an Advocate, (S) AIR 1957 SC 149
  • Mrs. Ratnamma Breganza v. Abdul Khader Khureshi, AIR 1959 AP 135

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