Whether Advocate can take brief from opposite party of his former client?
Regulation 33 of Section II of Part VI of Bar Council of India Rules, which is said to have been violated by the Appellant, reads as under:
An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party.
The spirit contained in the Rule 33, quoted above, is that where a lawyer has committed breach of his duty in respect of fiduciary obligation arising out of the relationship between himself and his client, he is guilty of misconduct of conflict of interest. The above rule restrains a lawyer from acting for another client on the ground of conflict of interest as the duty of the lawyer owed to his former client, not to act prejudicially to his interest, does not come to an end with the termination of the earlier case of his client with whom he had shared confidential information.
The basis of Rule 33 is that there is likelihood or possibility of misuse of the instructions given to the lawyer by his former client.
In V.C. Rangadurai v. D. Gopalan and Ors. MANU/SC/0029/1978 : (1979) 1 SCC 308, this Court has held that where advocate finds there would be conflict of interest in taking up a case of his client, he should not accept the brief of such client, against interest of his earlier client. Defining the word “misconduct”, this Court in Noratanmal Chourasia v. M.R. Mulri and Anr.MANU/SC/0361/2004 : (2004) 5 SCC 689, has explained that misconduct is a transgression of some established and definite rule of action.
In O.P. Sharma and Ors. v. High Court of Punjab and Haryana MANU/SC/0571/2011 : (2011) 6 SCC 86, this Court has made following observations in paragraphs 37 to 39 relating to ethical standards in the judicial system, and the same are reproduced as under:
- A court, be that of a Magistrate or the Supreme Court is sacrosanct. The integrity and sanctity of an institution which has bestowed upon itself the responsibility of dispensing justice is ought to be maintained. All the functionaries, be it advocates, Judges and the rest of the staff ought to act in accordance with morals and ethics.
- An advocate’s duty is as important as that of a Judge. Advocates have a large responsibility towards the society. A client’s relationship with his/her advocate is underlined by utmost trust. An advocate is expected to act with utmost sincerity and respect. In all professional functions, an advocate should be diligent and his conduct should also be diligent and should conform to the requirements of the law by which an advocate plays a vital role in the preservation of society and justice system. An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation/misconduct militates against the fundamental foundation of the public justice system.
- An advocate should be dignified in his dealings to the court, to his fellow lawyers and to the litigants. He should have integrity in abundance and should never do anything that erodes his credibility. An advocate has a duty to enlighten and encourage the juniors in the profession. An ideal advocate should believe that the legal profession has an element of service also and associates with legal service activities. Most importantly, he should faithfully abide by the standards of professional conduct and etiquette prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India Rules.
In Dhanraj Singh Choudhary v. Nathulal Vishwakarma MANU/SC/1490/2011 : (2012) 1 SCC 741, discussing the nobility of the profession of lawyers, this Court has made following observations: - Any compromise with the law’s nobility as a profession is bound to affect the faith of the people in the rule of law and, therefore, unprofessional conduct by an advocate has to be viewed seriously. A person practising law has an obligation to maintain probity and high standard of professional ethics and morality.
IN THE SUPREME COURT OF INDIA
Civil Appeal Nos. 2581 and 2633 of 2005
Decided On: 17.03.2015
Chander Prakash Tyagi
Vs.
Benarsi Das and Ors.
Coram:T.S. Thakur and Prafulla C. Pant, JJ.
Citation;AIR2015 SC 2297 , (2015 )8 SCC506