S.35 The Advocates Act, 1961 - Conduct of Advocates

 

87. UNCONDITIONAL APOLOGY - WHEN CANNOT BE ACCEPTED?[1]

 

An apology merely to protect against rigours of law is no apology. An 'unconditional apology' while trying to justify the act cannot be accepted. A belated apology also cannot be accepted. Chandra Shashi v. Anil Kumar Verma (1995) Judicial Civil Law Reports (SC): (1995) SCC 42: 1995 SCC (Cr) 239: 1995 JIC 225 (SC)

 

88. SUPRESSION OF TRUTH OR TELLING OF LIE

A legal practitioner cannot suppress the truth in the court as to his own doings. Gul Mohammad v. Mulchand AIR 1933 Lah: 146 IC 474 (2): 34 PLR 963

 

A lawyer is not a mere agent of his client and is not bound to act as his client dictates. He has a responsibility to the court which overrides his obligation to the client. He is to judge what is right and proper, and act in the interests of truth. He enjoys a privilege to practise in courts of law by reason of his character and assurance of right conduct.

A lawyer's office is a badge of honor and a patent of trustworthiness derived from his position as an officer of the court. The court is entitled to expect the highest rectitude and caution on the part of a lawyer, and accepts unquestioningly the statements made at the Bar as truth. As a member of an honorable profession, his primary duty is to act in an honest and upright manner. The conduct of a lawyer who makes palpably false statements recklessly is reprehensible and tantamounts to moral depravity which would justify his removal from the rolls. It shows that he is unfit to discharge the duties of his office and is unworthy of the rolls. Youth or inexperience is no extenuation for falsity and unworthy conduct. When such conduct is inconsistent with common honesty and uprighness, it is the duty of the High Court to protect the public as well as the profession itself against repetition of such conduct. State of Orissa v. A. Krishna Rao AIR 1955 Ori 46

In this case, a pleader deliberately made a false statement before the court that he had already appeared for the defendant in the lower court and that he filed a memo of appearance with a view to evade payment of court-fee on a properly stamped vakalatnama

If a professional man does not tell the truth, in connection with a matter which he has undertaken to carry through on behalf of a client, that is a conduct which may easily be said to involve moral delinquency. It is not in the best interest of the legal profession as a whole or any member of it (other than the person accused) that there should be any lax or loose standard of professional conduct. (In the matter of an Advocate AIR 1935 Cal 484, 157 IC 374, 36 Cr LJ 1130, ILR 62 Cal 158)

 

The fact that a man is going to be injured professionally if he were to speak the truth is not a valid excuse for telling a lie; but it is an attitude which is not uncommon and which is not of the most serious character. It is very different from the case of a professional man telling a lie fraudulently in the sense of wishing to assist client in a claim that he is making against another person. In the matter of a first grade Pleader AIR 1923 Mad 485, 24 Cr LJ 585, 73 IC 329

 

It is a serious matter for a legal practitioner to make a false statement knowingly in a pleading drafted by him. In the matter of Pleader, Vellore ILR 1944 Mad 550, 213 IC 161, AIR 1944 Mad 268, 45 Cr LJ 690, 57 LW 174, 1944 mwn 196, (1944) 1 MLJ 233.

 

92. FRAMING SERIOUS AND GRAVE CHARGES AGAINST PARTY TO LITIGATION

A counsel is not expected to conduct an inquiry into the statements made by his client. But when the client makes a statement upon facts which cannot possibly be within his own knowledge, the it is undoubtedly the duty of counsel before he makes an allegation based on the information supplied by the client in a written statement to discover if there is evidence in support of this allegation. He is entitled to accept his client's statement of facts so far as these facts may be within the knowledge of his client. But if his client desires him to frame serious and grave charges in a written statement, then undoubtedly it is the duty of the counsel before he does so to satisfy himself that there is a reasonable evidence forthcoming in support of these allegations. It is somewhat difficult to lay down a general rule whiech will operate fairly in every case. But this atleast may be stated. No counsel is entitled to frame a serious charge against a party to a litigation unless he is in possession of admissible and relevant evidence upon which, it accepted, counsel could reasonably ask the to hold the allegations true. It may well be that the evidence in support of the allegation is untrue and it is certainly not the duty of a counsel in the ordinary course to test the truth of the witnesses whom he intends to put into the witness-box but at the conclusion of evidence which he has led, he should be in a position to submit as a reasonable proposition to the court that the evidence which he has led, if accepted, establishes the allegations for which he had made himself responsible; if he is not in possession of such evidence to support them, he is not entitled to make grave and serious allegations. In the matter of An Advocate, Cawnpore AIR 1935 All 425, 1935 ALJ 759, 1935 AWR 285, per Thom, J.

 

It is imperative in the interest of administration of justice that too rigid a test of the conduct of an advocate in the matter of drafting pleadings should not be emphasized and that the test should be such as not to deter a counsel from fearlessly placing before the court such allegations as their clients instruct them to make, so long as those allegations do not appear manifestly reckless and unfounded. It is the duty of counsel to use their own judgment, experience and discretion, and not to make irrelevant or unduly insulting allegations in the pleadings but it is equally their duty to embody the case of their clients in the pleadings fearlessly provided the instructions received from clients justify the case embodied in the pleadings. While on the one hand, a counsel is expected to  be careful and not reckless in drafting the pleadings, he cannot, on the other hand, assume the role of a judge and refuse to embody allegations that his client instructs him to make unless and until he has examined the evidence on the subject. A counsel is in one sense the mouthpiece of his client but he does not guarantee or pledge himself for his client's veracity. In the matter of An Advocate, Cawnpore (supra) AIR 1935 All 425.

 

96. DECEPTION OF COURT AND OBSTRUCTION OF JUSTICE

American Cases

There is no recognized rule of law or ethics which justifies the conduct of counsel in any case, civil or criminal, in endeavoring by dishonest means to mislead the court or jury, even if to do so might work to the advantage of his client, and such conduct will constitute a ground for suspension or disbarment. In re Metzger 31 Hawaii 929.

A duty rests on the courts to maintain the integrity of the legal profession by disbarring attorneys who indulge in practices designed to bring the courts or the profession into disrepute, or to perpetuate a fraud on the courts, or to corrupt and defeat the administration of justice. People ex rel Chicago Bar Association v. Sherwin 4 NE (2d) 477, 364 111 350

An attorney may be suspended or disbarred for perverting, or attempting to pervert, a decision of a cause on the merits, by deeving or misleading the court, by bribing or tampering with witnesses, or jurors, by stiffling or suppressing evidence, by introducing evidence or allowing evidence to be given which he knows to be false or forged, by knowingly making false or forged affidavits, or having them made, for the purpose of deceiving the court, or by incorporating misstatements in the pleadings or in the papers in a case before the court. Roark v. State Bar of California 55 P (2d) 839; Wright v. State Bar of California 17 P (2d) 101, 217 Cal 59; In re Graves, 280 P 115, 208 Cal 57; Bar Association of San Fransisco v. Devall 210 P 279, 59 Cal App 230. 

Taylor v. Commonwealth 233 SW 895, 192 Ky 410.

People v. Powell 287 P 858, 87 Cal. 387

US Harkin v. Brundage, (CCA III) 13 F (2d) 617; certiorari granted, 47 S Ct 237, 273 US 682, 71 L Ed 838; and reversed on other grounds, 48 S Ct 268, 276 US 36, 72 L Ed 457.

In re Hoover 46 P (2d) 647

Curtis v. Whiteford 59 App. DC 330, 41 F (2d) 302

In re Vilson 170 NYS 725.

 

Other acts of misconduct resulting in obstruction or perverting the Administration of Justice which have been held to constitute grounds for his department are: conspiring to obtain divorce on false grounds, inducing litigants to assume a fictitious residence, filing suit before legal residents necessary thereof is fully established; filing suit or taking proceedings in the wrong jurisdiction with corrupt motive or fraudulent designed to support desk justice, filing a sham answer, or affidavit, for the purpose of the late; abetting witness to conceal identity or to impersonate another; deliberately and knowingly procuring a false and fraudulent judgement or order, submitting a fictitious case; submitting only a partial statement of material facts known to him, continuing a suit based on adjourned testimony, prosecuting the claim known by him to be unjust and without merit; advising a client to 4 feet bail; or to disobey an order of court; applying for continuance because of the absence of material witnesses who are actually present; citing a case as controlling without informing the court of unreported decisions known to him which discredited it; filing false or sham pleadings, or worthless appeal bonds; supporting a claim by a false and fraudulent appraisal and; offering the positions directly contradictory to those made in a formal proceeding by the same deponent; and submitting a proposition to change an opinion of the Court for money consideration, suppression from court the fact that similar previous writ petition was dismissed.

Conduct tending to prejudice consideration of pending litigation, on the part of an attorney, has been held to constitute a ground for suspension or disbarment.

Case laws

  1. In re Forrester 155 NYS 420, 169 App. Div. 619-6 CJ, p. 597, note 13
  1. In re O’Neill 171 NYS 514, 184 App Div 75; In re Mathot 166 NYS 217, 178 App. Div. 759; dismissal of appeal granted, 117 NE 848, 22 NY 8
  1. In re Hoover 46 P (2d) 647
  1. In re Mundy 158 So 563, 180 Lil Akki 1079
  2. In re Tinney 176 NYS 102, 187 App. Div. 569; In re Schreiber 156 NYS 398, 170 App. Div. 543
  3. People v. Martin 124 NE 340, 288 111 615
  1. In re Aanger 194 NE 72, 266 NY 165; reversing 267 NYS 193, 239 App. Div. 129, re-argument denied, 270 NYS 657, 241 App Div 60
  1. People v. Brillow 140 NE 829, 309 Ill 178
  2. In re Macy 196 P1095, 109 Kan 1, 14 ALR 848
  3. Matter of V 42 NYS 268, 10 App Div 491 - 6 CJ, p. 597, note 16
  4. Matter of Hardenbrook 135 App Div 634, 121 NYS 250; affirmed 92 NE 1086, 199 NY 539
  1. In re Brooklyn Bar Association 227 NYS 666, 233 App Div 149
  1. Matter of Pascal 131 NYS 325, 202 App Div 76-6 CJ, P. 597, note 20
  2. In re Champion 103 P 600, 24 Okl 154
  1. Matter of V 42 NYS 268, 10 App Div 481
  1. In re Tinney 176 NYS 102, 187 App Div 569-6 CJ, p. 597, note 24
  2. People v. Kickler 57 NE 893, 186 III 64
  3. State v. Fisher 117 NW 882, 82 Neb 361; affirmed 119 NW 249, 82 Neb 367.
  4. Matter of Schleimer 135 NYS 406, 150 App Div 507
  5. People v. Reaugh 79 NE 936, 224 III 541

 

 

 

 

 

 

REFERENCES

  1. Sanjiva Row, The Advocates Act, 1961, Lexis Nexis 8th Ed, 2014

 

[1] Sanjiva Row, The Advocates Act, 1961, Lexis Nexis 8th Ed, 2014 at Pg 230