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PETITIONER: PANDURANG DATTATREYA KHANDEKAR

       Vs.

RESPONDENT: THE BAR COUNCIL OF MAHARASHTRA, BOMBAY & ORS.

DATE OF JUDGMENT10/10/1983

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)

CITATION:  1984 AIR  110            1984 SCR  (1) 414  1984 SCC  (2) 556        1983 SCALE  (2)495

ACT:      Appellate Jurisdiction-Appeal  under Section  38 of the Advocates Act,  1961-Interference by  the concurrent finding of fact  by the  Disciplinary Committee  of the Bar Council- Degree of  proof required  for  a  Disciplinary  Proceeding, explained.      Advocates  Act,   1961,  Section   35  (1)-Professional Misconduct, meaning  of-Distinction between  giving of wrong advice and  improper legal  advice-The  having  of  improper legal advice, may amount to professional misconduct.

HEADNOTE:      The appellant and another advocate were found guilty of professional misconduct by the Disciplinary Committee of the Bar Council  of India by its order dated April 23, 1976. The gravamen of the charge against them related to the giving of improper  legal   advice  on   two  specific   counts.   The Disciplinary Committee  held them  guilty on both counts and ordered the  suspension of the appellant from practice for a period of four months-and the other advocate 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 the Advocates Act, 1961, interfere with  the   concurrent  findings  of  fact  reached  by  the Disciplinary Committee  of the  Bar Council  of India and of the State  Bar Council  unless they are based on no evidence or proceed on mere conjectures and surmises. Finding in such disciplinary proceedings  must be 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   prosecution.    There   should    be   convincing preponderance of evidence [419 B-C      2.1 The  test of  what  constitutes  "grossly  improper conduct in  the discharge  of professional  duties" was been laid down  in many  cases. The test to be applied is whether an advocate,  in the  pursuit of  his profession,  has  done something with  regard  to  it  which  would  be  reasonably regarded as  disgraceful or dishonorable by his professional brethren. what  is to  say, whether the proved misconduct of

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the advocate is such that he must be regarded as unworthy to remain as member of the honorable profession to which he has been admitted and unfit to be entrusted with the responsible duties that  an advocate  is called upon to perform. [419 E; 420 B-C] 415      In re:  A. Solicitor  Exparte the  law society [1912] 1 K.B. 302;  Allinson v.  General Council of Medical Education and Registration  [19841 1  Q.B. 750; Geogre , Friar Grahame v. Attorney  General, Fiji  AIR 1936  P.C. 224  quoted  with approval.      2.2 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  of judgment or indiscretion. [420 C]      A pleader  v. The  Judges of  the High Court of Madras, AIR 1930 P.C. 144; referred to.      2.3 There  is  a  distinction  between  the  giving  of improper legal  advice and the giving of wrong legal advice. Mere negligence  unaccompanied by  any moral  delinquency on the part  of an  advocate in  the exercise of his profession does not  amount to  professional misconduct.  There must be proved that  the advocate  was guilty  of moral turpitude or that there was any moral delinquency on his part. [420 D-E]      In re:  G. Mayor  Cooke [1889]  33  Sol.  Journal  397, quoted with approval.      In re:  A Vakil  ILR [1925]  49  Mad  523,  In  re,  An Advocate, ILR  [1935] 62  Cal  158:  In  the  matter  of  an Advocate of Agra ILR [1940] All 386 approved.      In the  matter of  P an  Advocate [1964]  1 S.C.R.  697 applied.      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 the 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  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 therefore follows that the client is entitled  to receive  disinterested, sincere  and  honest treatment  especially   where  the   client  approaches  the advocate for  succor in  times of  need. The  members of the legal profession should stand free from suspicion. [121 A-C]      3.2 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 the  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 for 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. [421 F-H] 416      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 suspicion about  the manner  in which the advocates had been conducting their  affairs. It  was accordingly held that the

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Disciplinary Committee  of the Bar Council of India erred in holding the advocates guilty of professional misconduct. The proceedings drawn  against them  under sub-s  (1) of s 35 of the 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 profession.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : CIVIL Appeal No. 720 of 1976.      Appeal under section 38 of the Advocates Act, 1961 from the order  dated the  23rd April,  1976 of  the Disciplinary Committee of  the Bar Council of India 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. 1.      S. V. Tambekar for the Respondent.      The Judgment of the Court was delivered by      SEN, J.  The disciplinary proceedings out of which this appeal under  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 various  acts   of  professional   misconduct  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 Disciplinary 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 1, 1976 and Agavane for a period of  two months  therefrom. This  Court by  its  order dated September  24, 1976 admitted the appeal and stayed the operation of the suspension of order.      First as to the facts. 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 417 approached the  clients  and  adopted  questionable  methods charging exorbitant  fees. The State Bar Council referred to four specific charges relating to them, two of impersonation as A.D.  Ghospurkar and  N.L.  Thatte  and  depriving  these gentlemen of  the briefs  meant  for  them.  The  State  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 of India and the State Bar Council however found the appellant and Agavane to be guilty  of giving  improper legal  advice  and  held  the charge of  professional misconduct proved, but having regard to the  fact that  they were  junior members of the bar, the Disciplinary Committee  has taken  a lenient view and passed the sentence  indicated above.  In dealing with the question of punishment  to  be  imposed  on  them,  the  Disciplinary Committee observes:           "We  take   into  consideration  the  age  of  the      advocates the  families  they  have  to  maintain,  the      environments in  which they  practise and  the standard      which is  maintained in such on environment is not very

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    high as the ’Bar Association Rules’ certify toutism and      provide for toutism which could be unthinkable anywhere      else."      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 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. (2) On February 22, 1374  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 418 two lawyers told her that she should not unnecessarily spend a large  A 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  against  the  appellant  and  Agavane  are serious enough  and if  true in a case like the present, the punishment has  to be  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 of January 7, 1974, the appellant  pleads 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 expressed  that they  wanted to marry each other on that very day  and leave Poona. His case is that they represented that the  priest was  insisting upon an affidavit as regards their  divorce  as  a  precaution  before  performing  their marriage and  therefore 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 misled  their clients Potdar  and Smt. Dhavale that the affidavit sworn by them  before   the   Sub-Divisional   Magistrate   and   the certificate of  marriage  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

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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. 419 It proceeded upon the view that the affidavit could be taken as evidence  that Smt. Sonubai had handed over possession of her property  to her  grand-daughter Smt. Mangala and if the latter possessed  it for 12 years she would acquire title by prescription and  although the  will may  not be  a deed  of gift, it 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  be sustained  by a  higher degree of proof than that  required in civil suits, yet falling short of the 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 and 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 professional misconduct  and  not  any  other  conduct.  The question is  whether there  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.  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 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 Allinson v. General Council of  Medical Education  &  Registration,  applied  to professional misconduct  on the  part of  a  Solicitor,  and observed:           "If it is shown 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      dishonourable by  his  professional  brethren  of  good      repute and  competency, then  it is open to the General      medical Council  to say  that he  has  been  guilty  of      ’infamous conduct in a professional respect’." 420 The Privy Council approved of the definition in George Frier Grahame v.  Attorney General,  Fiji and  this Court  in  the matter of  P. An  Advocate has followed the same. The narrow question that  remains for  consideration now is whether the finding of  the Disciplinary  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  on the advocate is such that he must  be regarded  as unworthy  to remain a member of 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 perform. The Judicial Committee of the Privy Council in, a Pleader v. The Judges of the High

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Court of  Madras laid  down  that  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 of judgment or indiscretion.      There is  a world  of difference  between the giving of improper legal  advice and tho giving of wrong legal advice. 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. In re A Vakil, Coutts Trotter, C.J. followed the decision in re G. Mayor Cooke and said 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.’, The decision  was followed  by the Calcutta High Court in re An Advocate,  and by  the Allahabad High Court in the matter of An Advocate of Agra and by this court in the matter of P. An Advocate. 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  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  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 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 the matter of  P. An  Advocate,(1) 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 treatment and advice      from the  advocates to whom they repair for counsel and      succour in  their time  of need;  and it  is  for  this      reason that Lord Mansfield laid down, and the Court has      always insisted,  that members  of the legal profession      "should stand free from all suspicion"."      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 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. 422

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    It appears  to us that 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. 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.      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 even 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 the 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  advertisement  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 Zila 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 married  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 custom prevalent among her tribe,  whereas Potdar who 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 would  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-Divisional  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 423 and brought  a document  styled as  a  marriage  certificate obtained under  s. 5 of the Bombay Registration of Marriages Act, 1953  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.   Dhavale  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  Agavane that they wanted to have their marriage performed. She then added that they  told these  lawyers that they wanted to get their marriage registered.  They both  appeared  before  the  Sub- Divisional Magistrate and verified the affidavit Ex. C-13 to be true  to their  personal knowledge.  When confronted with

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the portion  marked as "AA": "We have today married at Poona as per  Hindu rites",  she asserted  that she and Potdar had not been  married according  to  Hindu  rites  at  Poona  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 that she  has also changed her surname to Smt. Potdar. 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. 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 arising  from   the  recitals   coupled   with   the   other circumstances appearing.      The evidence  with regard to the second charge, namely, that the  appellant and  Agavane were  guilty of  not 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-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.  The   testimony  of   smt.  Sonubai   is  wholly inconclusive as to the identity 424 of the  person who prepared the affidavit. She states in her examination 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 be  also 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. She further unequivocally admitted that she never approached the appellant  at any  time for any work. It is difficult to support the  charge of  professional misconduct  against the appellant on such evidence.      It must  accordingly  be  held  that  the  Disciplinary Committee of  the Bar  Council of India erred in holding the appellant and  Agavane  guilty  of  professional  misconduct because the evidence adduced by the complainants falls short of the  required proof,  but the  circumstances appearing do give rise  to considerable  suspicion about  the  manner  in which they have been conducting their affairs, which defects from the norms of professional ethics.      May be,  the complainants  were  not  actuated  from  a purely altruistic  motive in  lodging 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 Disciplinary Committee that some 12 to 14 advocates  practising  in  the  two  Courts  of  the  Sub Divisional Magistrates  in the  Collectorate  of  Poona  had formed an  association called  the  Poona  Collectorate  Bar Association, the  purpose of  which was that the entire work in the  Collectorate should  be pooled  together. To  attain that  object,   the  complainants   employed  servants   for collecting work  from prospective clients on a percentage of fees to  be given  to them  and the  work to  be distributed among the members. It further appears that the appellant and Agvane were  two junior  lawyers who preferred not to become members of  the  association,  but  started  their  practice sitting under a tree in the Court precincts. Presumably, the gentlemen of  the bar  who were  members of  the association

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found that  their activities  a 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 lawyers will, in future, see to it that such improprieties as those referred to do not recur.      The Disciplinary Committee speaks of the "environments" in which  these lawyers work. The complainants have examined four  advocates  to  substantiate  the  charge  against  the appellant and 425 Agavane viz. 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 appearance 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 to indentify parties who come to make affidavits before the Sub-Divisional Magistrates and that his  work of conducting cases is negligible. During his 8 years  at the bar, he has done near about 10 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 Collectorate Bar. The conditions prevalent  are more  or less  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 themselves are not free from blemish. The Disciplinary Committee of the Bar Council of  India observes  that the  method adopted  by the complainants to  procure work  by  employing  agents  itself amounts  to   professional  misconduct.  It  deprecates  the practice that is prevalent at the Poona Collectorate Bar and observes with regard to the complainants:           "This means  that the  purpose of  the Association      was to  appoint certain  touts who  would get  work for      their members  and then  the work  will be  distributed      among the  members. Touting  or appointing touts is not      consistent with  the rules  framed under  the Advocates      Act and  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  disciplinary proceedings  have  since been initiated  against the  complainants and  therefore  we refrain from  expressing any  opinion on  the impropriety of their conduct.      The Preamble  to Chapter  II Part  VI of the Rules lays down that  an advocate shall at all times comport himself in a manner  befitting his  status as  an officer  of the Court privileged member of the 426 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:           "Don’t go  touting for  work in any circumstances.      There are  all sorts of ways of doing this. Don’t adopt      any of  them. If  you are going to get on, you will get

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    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  successful  or  counter-act  the  bad      impression you  will make  on many  people  inside  and      outside the law."      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  lawyers  may  well  expound unblushingly 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 consideration whatsoever. We impress upon the Bar  Council of India and the State Bar Councils that if they still  take strong  action to  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 the precincts of the law courts.      Finally, it  is the  solemn duty  of the Bar Council of 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 lawyers. 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 427 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 the 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  the 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  tune 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, particularly  the  junior 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 are the junior members. We expect that the matter will receive the attention that it deserves.      In the  result,  the  appeal  partly  succeeds  and  is allowed. The  order of the Disciplinary Committee of the Bar Council of  India holding  the appellant  and  A.N.  Agavane guilty  of   professional  misconduct   is  set  aside.  The proceedings drawn  against them under sub-s. (1) of s. 35 of the Advocates  Act, 1961 are dropped. We hope and trust that they  would   not  by   their  conduct  or  behaviour  prove themselves to  be unworthy to remain as members of the great profession to which they belong.      There shall be no order as to costs. S.R.                                  Appeal partly allowed. 428

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