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Bar Council Of Maharashtra v/s Dabholka: Bar On Soliciting The Work

A noble profession that has developed over time and become more rigorous due to traditions is advocacy. This is a summary of the case of Bar Council of Maharashtra v. Dabholkar and others, which established the standard for determining professional misconduct in the future and helped to define precise lines of distinction to maintain the integrity of the legal profession. It talked about how soliciting work amounted to misconduct in terms of professional behaviour.

An advocate is not allowed to promote their services or the profession in any way, which includes them. The Maharashtra Bar Council"s Disciplinary Committee received the complaint. After reviewing the situation and realizing how extensive it was, the Bar Council of India"s Disciplinary Committee heard all 8 instances in one trial and handed down a single ruling.

Primary Details Of The Case
Case No.: Civil Appeal Nos. 1461 to 1468 of 1974
Jurisdiction: Supreme Court of India
Case Decided On: October 3, 1975
Judges: Justice V. R. Krishna Iyer, Justice Ranjit Singh Sarkaria, Justice A.C. Gupta, Justice Syed Murtaza Fazalali
Legal Provisions Involved: The Advocates Act, 1961, Section 35, 38. The Bar Council of India, Rule 36

Brief Facts Of The Case
This case involves the Bar Council of Maharashtra as the Petitioner v M.V. Dabholkar and others as the respondent. The respondents, who were lawyers practicing in criminal courts, were charged with professional misconduct under section 35(1) of the Advocates Act, 1961. The Bar Council of Maharashtra considered the complaint received from the High Court of Maharashtra against the lawyers and referred the matter to its Disciplinary Committee for further probe. According to the testimony; recorded by the State Disciplinary Committee, these lawyers were sited at the entrance to the Magistrates" Courts, waiting for the arrival of potential litigants.

They raced towards the clients in an unpleasant tussle to snatch the briefs, to lay claim to the engagements even by physical fight, to undercut fees, and to obtain work for themselves through such unedifying behavior. The State Disciplinary Committee held the respondents guilty of professional misconduct and suspended them from practicing as advocates for three years. Aggrieved by the order the respondents preferred an appeal to the Bar Council of India under Section 37 of the Advocates Act, 1961.

Issues Involved In The Case
  1. Whether the prosecuted practitioners are guilty of professional misconduct?
  2. Whether the State Bar Council is considered an aggrieved party since it has suffered any legal grieving and since the Bar Council of India has not deprived the State Bar Council of anything?
Arguments Of The Parties
The State Bar Council referred to as the Appellant herein has filed the present appeal seeking to reverse the order passed by the Bar Council of India stating that the acts committed by the practitioners were only to solicit work and does not cross the borderline of professional misconduct. Aggrieved by the verdict of the Disciplinary Committee, the State Bar Council approached the Supreme Court for an appeal.

The Supreme Court argued that it was only fair to the respondents that each of the eight cases is heard separately rather than all of them being heard together.
  1. C.A. 1461/74 (Dhabolkar) Respondent Mr. Dabholkar was a Senior Prosecutor and the only witness that appeared for him testified that "I have not seen him snatching away the papers." Considering all the facts and the weak evidence against him, the Supreme Court did not state any specific order against him as he assured that being 68 years old, he would not pursue the path of professional impropriety as he had decided virtually to step out of the Bar except for four cases left with him which he desired to complete.
  2. C.A. 1462/74 (Bhagtani) Respondent Shri Bhagthani had not appointed a counsel, nor appeared in person, but upon examination, the Court found very little to hold him liable for.
  3. C.A.1463/74 (Talati) Respondent Mr. Talati was found guilty of some misconduct on his part but pleaded to show some consideration as he was in poor circumstances and had suffered because of it. Further, he expressed an unqualified regret for his deviant behavior and has prayed for the clemency of the Court, promising to practice proper professional conduct if given the chance to practice again. The court upon consideration of the said facts found him guilty but reduced his suspension, as ordered by the State Bar Council.
  4. C.A. 1464/74 (Kelawala) Respondent Mr. Kelawala, represented by Mr. Zaki, pleaded that he was purblind and was ready to give an undertaking to the Court that he would no longer practice his profession. Also, there was considerably little evidence against him. Given these, the court held that Mr. Kelawala will not practice the profession of law any longer.
  5. C.A.1465/74 (Dixit) Respondent Mr. Dixit represented by Shri Gannule was also absolved from professional misconduct due to inadequate evidence to prove him guilty of misconduct.
  6. C.A.1466/74 (Mandalia) Respondent Mr. Mandalia did not appear either through counsel or in person due to lack of evidence against him to prove him guilty of any particular "soliciting" act. Hence there was no proof of professional misconduct.
  7. C.A. 1467/74 (Doshi) Respondent Mr. Doshi contested his guilt and pursued his plea with righteous persistence and challenged the evidence and its credibility projecting his grievance about procession improprieties. Upon examining the witness and the background of Mr. Doshi, the Court ruled that he wasn"t guilty of professional misconduct but reprimanded him for the same and cautioned him to refine himself in advocacy.
  8. C.A.1468/74 (Raisinghani) Respondent Shri Raisinghani being 65 years old was found guilty as the evidence showed that he had physically fought two rival advocates in the course of snatching the briefs from clients, entering the criminal courts. One of these fights resulted in his trousers being torn and the other assault by him was on Mr. Mandalia, one of the respondents in these appeals. The court also found that Shri Raisinghani was a refugee from Pakistan and appeared at the Magistrate"s Courts to make a living. He showed remorse for his actions and prayed that he would go nowhere close to professional misconduct in the last years of his career. The court upon hearing this did not absolve him, but rather reduced his suspension.
Legal Aspects Involved In The Case
Section 35 (3) Punishment of Advocates for misconduct, Advocates Act, 1961

The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard may make any of the following orders, namely:
  1. dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
  2. reprimand the advocate;
  3. suspend the advocate from practice for such period as it may deem fit;
  4. remove the name of the advocate from the State roll of advocates.

Section 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 or the Attorney-General of India or the Advocate-General of the State concerned, as the case may be, 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 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 State Bar Council of India shall be varied by the Supreme Court to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard.

Rule 36 of the Bar Council of India Rules
An advocate shall not solicit work or advertise either directly or indirectly, whether by circular, advertisement, personal communication, interviews not warranted by personal relations furnishing newspaper comments or providing his photograph to be published in connection with cases in which he has engaged or concern. The three elements in Rule 36 are to be satisfied in order to be amenable to the disciplinary jurisdiction the advocates must have:
  1. Solicited work
  2. From a particular person
  3. With respect to a case

Judgement In Brief
  1. It held that the Appellate Tribunal has erred in the application of Rule 36 of the Bar Council Rules, as it was only promulgated in 1965, post the Amendment and the said act took place way before that.
  2. When the question arose for consideration of the Bar Council of India as an "aggrieved person", the Court referred to the findings in Adi Pherozshah Gandhi v. H. M. Seervai, 1970, where an appeal filed by the Advocate General of Maharashtra to the Bar Council of India was questioned, the Court held that the right of appeal is a statutory right and is invariably confined to an aggrieved person or a person that claims to be aggrieved. And that the interests of the Bar Council are to uphold professional conduct and etiquette of the advocates enrolled under it.
  3. The Court also held that "the Bar Council functions in a dual capacity, one as the prosecutor through its Executive Committee and the other quasi-judicial performed through its Disciplinary Committee. Hence, being the prosecutor, the State Bar Council would be an "aggrieved person" and therefore, the appeal under section 38 of the Advocates Act, 1961 would be maintainable."

Obiter Dicta:
  1. Addressing the issue of "professional misconduct", Justice Krishna Iyer stated that "Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice-social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation."
  2. The Bar Council acts as a sentinel of professional code of conduct and is vitally interested in the rights of the advocates as well as the purity and dignity of the profession, giving it all the more reason to be considered an "aggrieved party".
  3. It lit up the path to notice the nobility the legal profession holds and how advertising of the legal profession shall amount to professional misconduct. It is evident to note that the Legal profession is not a trade, and no commercial practice or merchandising must vulgarize the legal profession.
  4. Justice Krishna Iyer observed the idea of advertising of legal services in the following words, "The canons of ethics and property for the legal profession taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy, for the betterment of the legal business. Law is not a trade, briefs no merchandise and to the leaven of commercial competition or procurement should not vulgarize the legal profession."
  5. An advocate must fulfill the above-mentioned duties to his colleagues. The object of framing this rule is to safeguard the interest of the profession itself. Advocacy is and profession and not a business. The restriction put on this profession under the said rule is Constitutional and not violative to Article 19(1) (g) and Article 21 of the Constitution. Moreover, such restrictions are just, fair, and reasonable, and not arbitrary, fanciful, and evasive.
  6. It satisfies the twin test given in Article 14 of the Constitution i.e. the classification is just, fair and reasonable and there is Nexus between the object and classification. The object is to achieve the efficiency of advocates to the legal profession, to safeguard the interest of both advocates as well as the public at large, and the better administration of Justice for which the legal profession is a partner with the judiciary.

This case gives one of the landmark judgments making it a watershed moment in laws related to professional misconduct in India. The Court discussed important issues such as legal ads and the obligations of advocates to one another, issuing a promising decision that remains in effect until this date. According to my views, this case opens the discussion for determining if the legal profession is suitable for a trade, and therefore whether it should be marketed or not.

Advertising in the legal profession is frowned upon, and sufficient laws are there which prohibit it, as well as those that recommend a dose of punishment when an attorney advertises his profession. With lawyers strewn around the world, it"s strangely refreshing to note that active promotion of the profession is strictly prohibited. Since the legal profession is not a trade, it does not require advertisements because there is no need to brag about it.

It creates an unwelcome sense of dismay among the advocates, and they cannot afford such palpable stress. The aim is to prevent one advocate from having an unfair advantage over the other, and advertisement suppression is undoubtedly one explanation for this. Advocacy must live up to its reputation as a noble career. Unfortunately, several law firms, despite their claims that they do not advertise, use websites or other sources to lay out facts about the firm and assert monopolistic market power, forcing smaller firms and independent practitioners out of business.

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