Bar Council Of Maharashtra v. M. V. Dabholkar And Others, 1975

Name Bar Council of Maharashtra v. M. V. Dabholkar And Others 
Citation Civil Appeal Nos. 1461 to 1468 of 1974
Appellant Bar Council of Maharashtra 
Respondent M. V. Dabholkar And Others
Bench Justice V. R. Krishna Iyer
Acts Advocates Act, 1961; Bar Council Rules

Advocacy is a profession that carries on the finest of nobility, and advocates are referred to as the social engineers. Over time advocacy has developed into a fine moulding of standard and the norms surrounding it sure does make it a more stringent profession. Amongst other things, one thing that an advocate is not allowed is advertising- of himself, or a case he is handling, or anything related to the profession, by any means at all. Advertising in the legal profession is one such activity that is frowned upon and there are adequate laws barring advertisement, as well those that prescribe a dosage of the punishment when an advocate advertises his profession. 

One of the landmark judgements can be spotted in Bar Council of Maharashtra v. M. V. Dabholkar and Others, reported in 1976. This article aims at painting a picture of this landmark judgement of the Apex court on its findings related to advertising in the legal profession and why it is visibly frowned upon. 

Introduction

The discussion of this case can be steered into the direction of dissecting whether the legal profession would make for a trade or not, hence lies the question if it should be advertised or not. With lawyers just about everywhere in the expanse of this country, it is oddly satisfying to notice that active advertising of the profession is a firm no-no. The legal profession not being a trade needs no advertising as there is really no need to boast of the profession. 

It simply proposes an unwanted dismay amongst the advocates and they cannot afford to have such palpable tension amongst each other. The goal is to not let one advocate have an added advantage over the other, and certainly the suppression of advertising, a reason for it. 

It is necessary for advocacy to live up to its claims of being a noble profession. 

Unfortunately, in practicality, many law firms although claim not to advertise, use websites or other sources laying out information related to the firm and claim monopolistic market, putting various smaller firms and independent practitioners out of work. 

Background Of The Case

There was an alarmed state of affairs created by numerous practicing advocates, at the entrance to the Magistrate Courts in Bombay, timing with the arrival of potential litigants and approaching them in ugly, haphazard manners to solicit work for themselves, by snatching their files. The High Court of Maharashtra, upon receiving complaints about the same, as on August 8th, 1964, referred these acts of misconduct to the Disciplinary Committee of the Bar Council of Maharashtra for further probe, where the acts by the practitioners was accounted for professional misconduct and suspended these advocates for three years. 

The appellate tribunal absolved the practitioners of professional misconduct, 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. 

This case went on to be set the benchmark for future in determining the baseline for professional misconduct and hence facilitated in drawing fine lines of differentiation in preserving the legal profession to be a noble one. 

Facts Of The Case 

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, one of the Respondents. 

The roots of this appeal can be traced back to when an assembly of practitioners flocked potential litigants at the entry to the Magistrate Courts, to grab onto their case files, often resulting in physical squabbles, and solicit cases for themselves. This mass misbehaviour alarmed the public the High Court of Maharashtra filed a complaint to the Bar Council of Maharashtra. 

The Disciplinary Committee of the Bar Council of Maharashtra, as mentioned under Section 35 (1) of the Advocates Act, 1961, motioned for the disposal of the case. On perusal of the matter, and due to its voluminous nature, all 8 cases so files were tried together as a unified proceeding and was disposed off with a common judgement by the Disciplinary Committee of the Bar Council of India. 

One such Respondent, A. K. Doshi contended that “the resolution of the Bar Council does not ex facie disclose that it had reason to believe that the advocates involved were guilty of professional misconduct”. The Court contended that “the requirement of ‘reason to believe’ cannot be converted into a formalised procedural road block, it being essentially a barrier against frivolous enquiries. It is implicit in the resolution of the Bar Council, when it says that it has considered the complaint and decided to refer the matter to the disciplinary committee, that it had reason to believe, as prescribed by the statute.”

The Disciplinary Committee of the State Bar Council held the nature of the acts to be professional misconduct, suspending the said practitioners for three years. 

An appeal was filed to the appellate tribunal, that is, the Bar Council of India, which, as per the prescription of Section 37 (1), referred the matter to the Disciplinary Committee for further probe. The Bar Council of India reversed the order passed by the State Bar Council with the reason that the said acts “do not cross the borderline of professional misconduct”. This verdict was based on a three-point formula that- the advocates must have (i) solicited work; (ii) from a particular person and (iii) with respect to a case. 

It held that unless the three elements were satisfied it could not be said that an advocate had acted beyond the standard or professional conduct and etiquette.

Aggrieved by the decision of the Bar Council of India, the State Bar Council approached the Supreme Court to do good the losses, under the provision prescribed under Section 38 of the Advocates Act, 1961. Hence the present appeal. 

Issues 

1. Whether the prosecuted practitioners are guilty of professional misconduct?

2. Whether the State Bar Council be 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?   

Related Provisions

Rule 36 of the Bar Council Rules- Duty towards Colleagues

Section 35 (1), Advocates Act, 1961

Section 49 (c), Advocates Act, 1961

Judgement 

The Supreme Court contended that it was only fair on the Respondents they be heard individually, rather than all the 8 cases heard in unison. 

Starting with Mr. Dabholkar, one of the Respondents, was a senior Prosecutor and the only witness that appeared for him testified– “I have not seen him actually snatching away the papers. I did not hear the talk Mr. Dabholkar had with the persons”. Mr. Dabholkar was about 68 years old and wished to retire soon after completing his remaining 4 cases, for which he had already charged fees, and during the present proceedings had decided virtually to step out of the bar. Considering these facts and the weak evidence against him, the Supreme Court did not state any specific order against him.

Another 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. Hence saw no need to punish him. 

Mr. Talati, another one of the Respondents, represented by Mr. Zakiruddin, pleaded to show some consideration towards the Respondent. And they further pleaded that he was in poor circumstances and had suffered because of it. They also pleaded that he would practice proper professional conduct if he was given the chance to practice again. The court upon consideration of the said facts, reduced his suspension, as ordered by the State Bar Council. 

Mr. Kelawala, represented by Mr. Zaki, another one of the Respondents 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. In view of these, the court held that Mr. Kelawala and Mr. Zaki are not to continue their practice. 

Mr. Dixit for whom Shri Gannule appeared, submitted evidence against this lawyer, but was inadequate to prove him guilty of misconduct. Hence, the Respondent absolved from professional misconduct. 

Mr. Mandalia, another one of the Respondents that failed to appear either through a counsel or in person. The lack of evidence against him was not helpful if his act could amount to “soliciting”, hence no proof of professional misconduct. 

Mr. Doshi, the only contesting Respondent, pleads guilty and pursues his plea with righteous persistence and challenges the evidence and its credibility projecting his grievance about processual 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. 

Shri Raisinghani, another Respondent, although is 65 years old, the evidence shows that he has 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.

It was also noted that he was a refugee from Pakistan and made money only by appearing at the Magistrate Courts. He showed remorse for his actions, and prayed that he would go nowhere close to professional pollution in the last years of his career. The court upon hearing this, did not absolve him, but rather reduced his suspension until the 31st of December, 1975. 

Lastly, 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.” 

It lit up the path to notice the nobility the legal profession holds and how advertising of 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. 

It also 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. 

Justice Krishna Iyer stated that “the canon of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsiness, for the betterment of the legal business. The law is not a trade, briefs no merchandise and to the heaven of commercial competition or procurement should not vulgarise the legal profession”. [1]

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 vs H. M. Seervai, 1970[2], 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 is to uphold professional conduct and etiquette of the advocates enrolled under it. 

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”. 

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.”[3]

Concepts Highlighted 

Duties Of An Advocate 

It is outrightly highlighted that an advocate must practice in utmost fairness and must not forget his duty towards his colleagues, of which not soliciting work is also a duty. And the other duty advocates owe to each other is to not pursue his profession in rivalry or in the spirit of competition. 

Advertising The Legal Profession

The fact that the legal profession is a noble profession stems out to explain that it cannot be advertised as it could lead to curtailing professionalism, bringing about bias, undermining the lawyer’s self-worth and dignity. And the other reason being that the legal profession can be linked to social service and hence misleading advertising could lead to loss in the quality of the profession. 

Professional Misconduct And Punishment For It 

The Court in this case has seriously condoned the disturbing behaviour of the advocates and has put forth a fine line of distinction for when an act can qualify as a professional misconduct and has henceforth stood as an exemplary case. 

Conclusion

This case proposed to be a landmark in the premise of professional misconduct in India. The Court addressed vital issues such as advertising in the legal profession and duties of advocates towards each other, delivering a promising judgement and holding validity until this date. Although there have been few tweaks due to amendments, the locus standi stands firm. 

In 2008, the amendment to the Rules of the Bar Council of India modified the Rule 36 and relaxed the ban on advertising. Legal professionals were permitted to have websites, mentioning their contact information and their areas of practice.

But it is also fascinating to know that having visiting cards, numbers in phone directories, etc, could also amount to misconduct under Rule 36 of the Bar Council Rules. [4]

References

Bar Council Of Maharashtra vs M. V. Dabholkar and Others, 1975

https://indiankanoon.org/doc/276363/

Duties of an Advocate

https://www.srdlawnotes.com/2016/03/duties-of-advocate.html

Leading Cases & Quiz on Professional Misconduct

Advertising in Legal Profession

http://www.legalservicesindia.com/article/2542/Advertising-in-Legal-Profession.html#:~:text=Advertisements%20have%20an%20adverse%20effect,loss%20of%20quality%20in%20services.

ADVERTISING BY LEGAL PROFESSIONALS- Ms. Isha Kalwant Singh

http://docs.manupatra.in/newsline/articles/Upload/C74B86B2-2614-4B56-A50D-8D498A841418.pdf

Bar Council Of Maharashtra vs M. V. Dabholkar And Others on 3 October, 1975

https://www.casemine.com/judgement/in/5609abb3e4b014971140d107

The Advocates Act, 1961

http://legislative.gov.in/sites/default/files/A1961-25.pdf

Rules on professional standards

http://www.barcouncilofindia.org/about/professional-standards/rules-on-professional-standards/

Adi Pherozshah Gandhi vs H. M. Seervai, Advocate-General, 1970 

https://indiankanoon.org/doc/1537030/


[1] Advertising in Legal Profession

[2] Adi Pherozshah Gandhi vs H. M. Seervai, 1970

[3] Leading Cases & Quiz on Professional Misconduct

[4] ADVERTISING BY LEGAL PROFESSIONALS- Ms. Isha Kalwant Sing

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