Advocate acting on wrong instruction of client: No misconduct
Whether
a lawyer representing a client based on the instructions of client is required
to ascertain the veracity of the averments in a petition/complaint duly sworn
by a client, and if allegedly the veracity of the averments is not ascertained
by the Advocate, whether that shall amount to misconduct has come to be
deliberated by the Division Bench of Delhi High Court recently in a matter
captioned as Chand Mehra Vs Union of India & Ors LPA 431/2025.
As
a prelude, it is imperative to note that a Letters Patent Appeal (LPA) was instituted
under Clause X of Letters Patent against the judgment and order dated
15.04.2025 passed by the learned Single Judge of Delhi High Court in W.P.(C.)
No. 4425/2025, whereby, the writ petition challenging the orders dated
06.10.2023 and 11.11.2024 passed by the Bar Council of Delhi (in short “BCD”)
and Bar Council of India (in short “BCI”) respectively had been dismissed.
The
facts of the case are rather peculiar. The BCD vide order dated 06.10.2023 had dismissed
the complaint filed by the appellant against several respondents- who are
practicing lawyers, on the premise that ground that the complainant in the
complaint had failed to establish any professional relationship between himself
and the respondents. The BCD had also rejected the contentions of appellant
that the respondents ought to have ascertained the facts with due diligence and
only after verification could have contested the matter on behalf of their
respective clients. It was noted that the allegations in the complaint in the
matter filed against the appellant under Section 138 of the Negotiable
Instruments Act, 1881, are false or correct, is to be decided only by the
Court, and, hence, no misconduct was made out against respondents Advocates.
The Revision Petition preferred by the appellant against the order dated
06.10.2023 passed by the BCD before the BCI under Section 48A of the Advocates
Act, 1961, was also dismissed vide order dated 11.11.2024. It was held that no
case of any “professional misconduct‟
is made out against respondent Advcoates It has further been held by the BCI in its
order dated 11.11.2024 that under the Bar Council of India Rules, it is the
duty of the Advocate to act on the instructions of their clients and that an
Advocate cannot sit and make an investigation of their client‟s
case, before representing such client in the Court of law. The other finding
returned by the BCI is that an Advocate cannot be prosecuted for the reason
that his client‟s case was false, and
further that the appellant and the respondents’ lawyers did not have any
fiduciary relationship of lawyer and client. The BCI had placed reliance upon a
judgment of the Madras High Court in R.Swaminathan v. Bar Council of
Tamil Nadu, (2014) SCC Online Mad 12777.
As
far as alleged violation of Rule 4 of Section 1, Chapter 1, Part VI of the Bar
Council of India Rules are concerned, the contention was also rejected, stating
the reason that though, the Rule 4 restricts an Advocate, not to be a mere
mouthpiece of his client, however, it does not mean that an Advocate has to
first ascertain the veracity or genuineness of his client’s
case before representing them.
The
orders, namely the order dated 06.10.2023 and 11.11.2024, passed by BCD and
BCI, respectively, became the subject
matter of challenge before the ld Single Judge in the writ petition, filed by
the appellant, namely W.P.(C.) No. 4425/2025,and that was also dismissed vide judgment and order dated 15.04.2025, and the said order passed
by the ld Single Judge was under challenge in LPA before the Division bench.
Findings of ld Single Judge
(i)
The Court is in agreement with the reasoning contained in the order passed by
the BCI. It was further observed by the learned Single Judge that Advocates of
the adversary of the appellant do not owe any fiduciary duty to the appellant,
nor is there any professional relationship between them.
(ii)
As per provisions of Section 35 of the Advocates Act, 1961, that the
allegations/ complaint made by the appellant against respondent Advocates do
not fall within the purview of “professional misconduct‟,
as contemplated under Section 35 of the Advocates Act, 1961.
(iii)
that alleged perjury/ fabrication of the documents during the course of the
legal proceedings under Section 340 Cr.P.C. have already been initiated by the
appellant and are pending and, therefore, in the said proceedings the Court
concerned will not take a view as to whether any perjury/ fabrication is
committed or not.
That
as referred to above, the order of single judge was impugned before the hon’ble
Division Bench and it was held by the Division bench that the reasoning given
by the learned Single Judge to arrive at his conclusions, cannot be faulted
with. On the basis of the contents
of the complaint lodged by the appellant against the respondent Advocates (respondent no. 3 to 5) no
case of professional misconduct is made out.
It was further held that Advocates
owed duty towards their client and it cannot be undermined by acting upon such
a complaint. It is further held as under:
“7. We may also record that an
Advocate is bound by the instructions given to him by his client and it does
not form part of his duty to verify the truthfulness or veracity of such
instructions especially for the reason that the assertions made by the parties
before the Court in the form of pleadings or setting up a case are to be
decided by the learned Court concerned in the proceedings and not by the
lawyers representing the respective parties”.
The appeal was
accordingly dismissed.
It
may be appropriate to deal with the matter further in order to holistically
deal with the issue. In R.Swaminathan vs Bar Council Of Tamil Nadu
(Supra). The following paragraphs is reproduced:
6. At the outset, it should be
pointed out that the second respondent, who was the complainant before the Bar
Council, was not the client of the writ petitioners. Even according to his
complaint, he was only one of the several shareholders of a Company, whose
property was purchased by another Company, on the basis of the legal opinion
tendered by the writ petitioners. In other words, the petitioners were not the
complainant's Lawyers. The petitioners and the second respondent never had any
jural or contractual relationship of lawyers and litigant. Therefore, I do not
know how the second respondent could make a complaint of professional
misconduct of giving a wrong opinion against the petitioners herein, when the
clients of the petitioners were satisfied with such an opinion and have not
raised an issue so far. This is an aspect which the Bar Council appears to have
completely overlooked before passing a Resolution to refer the matter to the
Disciplinary Committee”.
“7. As and when a complaint is
made against any Advocate, by a litigant alleging professional misconduct, the
Bar Council is obliged to consider at least, prima facie, whether the
allegations constitute a professional or other misconduct. Section 35 of the Advocates Act,
1961, enables the Bar Council to inquire into (i) complaints of professional
misconduct and (ii) complaints of other misconduct. In the case on hand, the
second respondent has not alleged against the petitioners, any "other misconduct".
He has alleged professional misconduct against the petitioners. But he did not
have any relationship with the petitioners”.
The
expression “ Misconduct” is not defined in the Advcoates Act. The Supreme Court
has held in R.D Saxena Vs Balram Prasad Sharma [2000 (7) SCC
264] that the word "misconduct" is a relative term and that
it had to be considered with reference to the subject matter and the context in
which it appears. Similarly, in D.P Chadha Vs Triyugi Narain Mishra [2001
(2) SCC 221], the Supreme Court held the expression
"misconduct" to have a wide connotation. It need not necessarily
involve moral turpitude, but, it has to be understood with reference to the
subject matter and the context in which it is employed.
In
Noratanmal Chouraria Vs M R Murli [2004 (5) SCC 689], it was held
that an Advocate was a party litigant in a Rent Control Proceeding. The
opposite party made a complaint to the Bar Council that as a party appearing in
the Rent Control Proceedings, the Advocate entered into an altercation with
him. The Bar Council refused to entertain the complaint, as the conduct
complained of, was not against any act of omission or commission by the
Advocate in his professional capacity. The opposite party appealed. The Supreme
Court dismissed the appeal, pointing out that to constitute misconduct, there
must be improper behaviour or intentional wrong doing or deliberate violation
of a rule or a standard of behaviour.
What
is clearly emerging from the aforesaid discussion, more particularly, in R.Swaminathan
vs Bar Council Of Tamil Nadu (Supra) and also based upon the judgments
rendered in the context is that a party raising issue against advocate hired by
the opposite party is anomalous. If any action is initiated in such a manner
shall on a complaint made by the opposite party against lawyers of other party,
no advocate can carry out his professional duties and responsibilities without
fear. It is no gainsaying that a professional is obliged to render services to
his client. It is not out of place to mention here that the services rendered
by an Advocate to his client, would naturally invite the displeasure and wrath
of such client's opposite party. Therefore, if parties to a litigation are
allowed to take up the battle to the door steps of the counsel for the opposite
party, the profession itself will be in jeopardy.
It
is held in R.Swaminathan vs Bar Council Of Tamil Nadu (Supra) as
under:
12. Moreover, it is highly
doubtful if a legal opinion given by an Advocate could constitute misconduct at
all. An opinion is always an opinion and even if that opinion turns out to be
wrong, in the course of a judicial proceeding, an allegation of professional
misconduct cannot be made against an Advocate. If at all, anyone could make
such an allegation against an Advocate for a wrong or improper legal opinion
tendered by him, it would be his own client and certainly not the party against
whom the litigation is fought”.
In
this context it is relevant to point out that disciplinary proceedings
initiated against an Advocate, in N.S Varadachari Vs Bar Council of
Tamil Nadu [2011 (3) MLJ 80] as in that case, also, the Advocate
concerned gave a legal opinion to his client for the purchase of a property and
some third parties entered into agreements with that person. A complaint was
raised subsequently, on the ground that the legal opinion given by the counsel
to his client was defective. The complaint was quashed. The learned Judge
referred to the decision of the Full Bench of Madras High Court reported as U.
Dakshinamoorthy Vs Commisison of Inquiry [1980 (1) MLJ 121] and
the decision of the Supreme Court in Pandurang Dattatraya Khandekar
Vs Bar Council of Maharashtra , Bombay, [AIR 1984 SC 110].
In
order to further amplify the discussions, it may be pertinent to refer to some other
judgements rendered in the context. In A.K Subbaiah Vs Karnataka Stated
Bar Council [AIR 2002 Kar. 410], the Supreme Court was concerned with a
complaint given by a person, whose father was the client of the lawyer
concerned. The complainant's father died, but no steps were taken to bring on
record the legal representatives of the deceased person. Therefore, the writ
petition filed by him was dismissed as abated. Hence a complaint was made by
the client's son against the counsel. It is in these circumstances, that the
Karnataka High Court refused to uphold the challenge to the initiation of proceedings
by the Bar Council, as that was a clear case of a dispute between the lawyer
and his client's son.
Yet
again, in the Supreme Court Bar Association Vs Union of India [AIR
1998 SC 1895], the Supreme Court was concerned only with the question
whether the Court can debar an advocate from practice for a specific period, as
a measure of punishment for established contempt of Court or not. The
Constitution Bench held that it was within the exclusive domain of the Bar
Council to deal with the professional misconduct of a lawyer and not for the
Court to suspend the licence, as a measure of punishment.
In
R.Swaminathan vs Bar Council Of Tamil Nadu (Supra) it is further held:
23. As a matter of fact, no
advocate can be found fault, for a wrong legal advise. In Pandurang
Dattartraya Khandekar Vs Bar Council of Maharashtra [AIR 1984 SC 110], the
Supreme Court pointed out that "there is world of difference between the
giving of improper legal advise and the giving of wrong legal advise." In
the same decision, the Supreme Court pointed out that when an advocate is entrusted
with a brief, he is expected to follow the norms of professional ethics and try
to protect the interests of his client in relation to whom he occupies a
position of trust and that "the Counsel's paramount duty is to the
client". The Supreme Court pointed out that for an advocate to act towards
his client otherwise than with utmost good faith is unprofessional. Therefore,
what the petitioners have done to their clients, is only in the due discharge
of their professional duties. A person who is in the opposite camp cannot take
exception to this”.
The
aforesaid discussion shall clearly reflect the broad canvas of the misconduct
by Advocate and the circumstances, if the issue of misconduct could be raised.
Firstly, the opposite party cannot raise issue of indiscretion or misconduct against
Advocate of other party, for, there shall not be a fiduciary duty between
them. The client and Advocate relationship has certain privileges and even as per
Advcoates Act, a client is bound by the instructions received from his client
and Advocate shall not be responsible for wrong or false averments. The
pleadings are drafted on the basis of instructions from the client and an Advocate
cannot be expected to ascertain the veracity of the averments. To elucidate it
further, in the context of rendering opinion also, even if it appears that a
wrong opinion was given by a lawyer, per se that may not be actionable,
for, decision on a lis is a domain of court. Moreover, if three is allegation
of misconduct against Advocate, the Bar Council shall be competent to deal with
the matter, and if merely as per whims and caprice flimsy allegations, is raised
against Advocate that may not pass muster.
------
Anil K Khaware
Founder
& Senior Associate
Societylawandjustice.com
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