13. The allegations in the complaint have been set out in this order elsewhere. The contention of the Petitioner that an advocate must have conducted due diligence before accepting a brief and that a false claim was fought on behalf of their client has to be analysed in the anvil of the term “misconduct“.
14. The State Bar council and as well as the Bar Council of India is empowered to initiate disciplinary action against an advocate for professional misconduct and other misconduct. The term “Misconduct“, does not have a narrow interpretation and the same has to be construed and interpreted based on the facts and circumstances of the case. Section 35 of the Advocates Act empowers the State Bar Council to entertain a complaint, if the State Bar Council has reasons to believe that an advocate on its role has been guilty of professional misconduct or other misconducts. It is the mandate of law, that the State Bar Council before referring a complaint for disciplinary proceedings to a disciplinary committee must prima facie record reasons to believe that a professional misconduct or other misconduct is made out in the complaint and for recording such reasons, the State Bar Council has to analyse the complaint along with its materials and the defence of the delinquent Advocate.
17. To attract professional misconduct there should be a professional relationship between the Petitioner and the Respondent advocates, this is pre-condition for attracting professional misconduct as there must be a jural relation. It is the admitted case of the Petitioner that the Respondent Advocates are the Advocates of his opposite party in the 138 NI Act proceedings. This particular admitted fact would reveal that there is no professional relationship between the Petitioner and the Respondent Advocates. Therefore, when there is no professional relationship between the parties i.e. the Petitioner and the Respondent Advocates, there cannot be a case for professional misconduct, moreover, the Petitioner herein is the opposite party to the client of the Respondent Advocates and the Respondent advocates have appeared in the 138 NI Act proceedings, where the petitioner was opposite party, therefore, in that context, a complaint for professional misconduct cannot be entertained against the Respondent Advocates, when there is no professional relationship between the parties.
19. We feel the aforesaid contentions of the Petitioner is misconceived for a simple reason that it is the duty of the lawyer to plead for his client on the basis available information provided by their client. A lawyer as a fiduciary duty towards his client to substantially represent his client’s case before the Hon’ble Court. The Bar Council of India’s rule under Part-VI, Section-II, has contemplated several regulations to be followed by a lawyer as a duty to his client. The contemplated rules lay a duty on the lawyer to protect the interest of his clients at all situations and more specifically rule 19 prescribes that an advocate should not act on any other person’s instructions other than his clients. This being the rule position, it is the duty of the lawyer, to plead on the instruction of his client and an advocate cannot sit and make an investigation on his client’s case before representing it in the court. The duty of the advocate is to analyse the case and give proper opinion to his client and represent his client. That being the duty of an advocate, an advocate cannot be prosecuted for the offence of professional misconduct or other misconduct on the context that his client’s case was not proved in the court and that the Advocate was aware that his client’s case was false, if such complaints are permitted to be entertained, it would raise a dangerous trend, where the opposite parties would raise professional misconduct complaints against advocates representing the other side, when a finding is rendered by the Court or to chuck out the lawyer of the opposite party from the proceeding.
30. Hence, for the aforesaid reasons this committee is of a considered view that there is no case of professional misconduct against the Respondent Advocates and moreover, the allegations of other misconduct are not raised in the complaint and the same does not require any adjudication as the legal profession is not shown in any bad light by the respondent advocates. Before we draw the curtains, we feel that permitting a third party or for the say, the opposite party against whom an advocate contest a case to lodge a professional misconduct complaint when the advocate’s client loses the case, this can be a dangerous issue as it would render the whole process of disciplinary proceedings as a revenge seeking mechanism and it would open a pandora box where every opposite party will be lodging complaints against the advocates of the other side and it will lead the legal profession to degradation.