Advocate’s duty to justice apply to the pre-litigation ?
bharat khatwani
(Querist) 04 November 2024
This query is : Open
I sought legal opinion on above subject. If you have contra view pl. elaborate...the principles outlined in an advocate’s duty to justice apply to the pre-litigation stage also, including the drafting and issuance of legal notices. While
legal notices are not part of formal court proceedings, they are often the first step in legal disputes and can significantly influence the course of the
case and the behavior of the parties involved. Courts and professional standards expect advocates to act ethically at this stage, as their duty to
justice and fair dealing extends beyond the courtroom. Here are some points on how these duties apply to pre-litigation:
**Duty of Honesty and Integrity:
Just as in court proceedings, an advocate is expected to uphold honesty and integrity in pre-litigation communications, including legal notices.
Case Reference: In D.P. Chadha v. Triyugi Narain Mishra (2001), the Supreme Court held that an advocate's ethical duty transcends court procedures and
that any conduct likely to mislead or distort the truth constitutes professional misconduct, regardless of the stage of the proceedings.
**Avoidance of Frivolous or Malicious Claims:
Advocates should avoid sending legal notices with baseless, exaggerated, or malicious claims simply to intimidate or pressure the opposing party.
Misusing legal notices to harass or deceive goes against the advocate’s duty to justice.
Case Reference: In Zahira Habibulla H. Sheikh v. State of Gujarat (2004), the Supreme Court stressed that all actions, even outside the courtroom, should
further the interests of justice and truth. This applies equally to the content of legal notices, as advocates are expected to refrain from behavior that
might lead to a miscarriage of justice.
**Duty to Provide Sound Legal Advice:
During the pre-litigation stage, advocates have a duty to give honest, balanced advice to their clients about the merits of the case. This includes
avoiding the temptation to make false promises or inflate claims just to appease or retain clients.
Case Reference: In S. Jafri v. Union of India (2011), the Supreme Court emphasized that advocates must uphold justice, even if it conflicts with client
demands, and not advise or draft documents that could lead to unfair legal actions.
**Ethical Drafting of Legal Notices:
Legal notices should accurately reflect the client’s legitimate claims and should be drafted in a way that is fair and just, without resorting to threats,
inflammatory language, or exaggeration.
Case Reference: The principles from State of Punjab v. Brijeshwar Singh Chahal (2016) emphasize that advocates should avoid using deceptive or manipulative
language in any formal or informal communication, as it undermines the legal profession’s commitment to justice.
**Professional Conduct Rules:
The Bar Council of India Rules under the Advocates Act, 1961 outline professional conduct obligations for advocates, including pre-litigation actions.
Rule 4 and Rule 5, for example, underscore that advocates must act with dignity, fairness, and honesty and should not engage in actions that mislead or
deceive.
Misleading or dishonest pre-litigation notices could therefore be grounds for disciplinary action, as they violate these professional standards.
**Conclusion
An advocate’s duty to justice, honesty, and integrity certainly applies to the pre-litigation stage. Legal notices should reflect genuine legal claims,
avoid exaggeration, and be drafted with respect for the principles of fairness and truth. Misuse of legal notices could constitute professional misconduct,
as the ethical obligations of advocates are not limited to the courtroom but extend to all actions taken in their professional capacity.
After reading this opinion ,I asked:
are there instances where bar council penalized advocates for Misleading or dishonest pre-litigation ?
Yes, there have been instances where Bar Councils in India have penalized advocates for misleading or dishonest conduct during the pre-litigation stage.
The Bar Council of India (BCI) and various State Bar Councils are empowered under the Advocates Act, 1961, to take disciplinary action against advocates
for professional misconduct, which includes unethical behavior before formal court proceedings commence.
**Relevant Provisions:
Section 35 of the Advocates Act, 1961: Empowers State Bar Councils to refer cases of alleged misconduct to their disciplinary committees. If an advocate
is found guilty, penalties can range from reprimand to suspension or even removal from the roll of advocates.
Bar Council of India Rules: These rules outline standards of professional conduct and etiquette, emphasizing that advocates must uphold the dignity and
integrity of the profession at all times, including during pre-litigation activities.
Case Example:
In the case of P.N. Vignesh v. Chairman and Members of the Bar Council (2024), the Madras High Court addressed the issue of advocates advertising their
services through online platforms, which was deemed a violation of professional conduct rules. The court directed the Bar Council of India to take
disciplinary action against such advocates, highlighting that even pre-litigation conduct, such as solicitation of clients through advertisements, can
amount to professional misconduct.
Key Points:
Misleading Clients: If an advocate provides false or exaggerated claims in legal notices or during client consultations before litigation, it can be
considered professional misconduct.
Unethical Solicitation: Engaging in solicitation of clients through advertisements or other means not permitted by professional conduct rules, even before
formal litigation begins, is subject to disciplinary action.
Disciplinary Actions: Penalties for such misconduct can include reprimands, suspension of the right to practice, or removal from the roll of advocates,
depending on the severity of the offense.
These measures underscore the legal profession's commitment to maintaining ethical standards at all stages of legal practice, including pre-litigation
activities. P.S. I NEED CASELAWS MENTIONED ABOVE
A. A. JOSE
(Expert) 04 November 2024
When you appears to so learned & knowledgeable as to draft such a lengthy essay with so many citations, one wonders as to what prevents you from getting these case laws by searching for them?
bharat khatwani
(Querist) 05 November 2024
There appears to be a general belief among advocates, that the presence of a client’s signature on a legal notice absolves advocates from the need to perform thorough due diligence. I sought clarification on this point, as I strongly believe that this perception conflicts with an advocate’s duty to the legal profession and justice.
The primary purpose of my post was to invite a counter-perspective—contrary views that could provide a 360-degree understanding, enhancing clarity on the ethical responsibilities advocates carry at the pre-litigation stage. Specifically, I asked for case law references to verify the integrity of the arguments and legal precedents quoted. So far, the reluctance to address this directly or provide substantiated case law only strengthens the impression that ethical responsibility in this area is being overlooked.
Legal notices, as we know, do not require a client affidavit. This absence makes an advocate’s role in ensuring accuracy and honesty even more critical. Unlike court submissions, which carry the client’s sworn statement, legal notices rely solely on the advocate’s own commitment to truthfulness. To ignore this responsibility not only risks misleading recipients but undermines the advocate's professional integrity and duty to justice.
I am looking for direct, informed responses grounded in case law or statutory rules. I would appreciate substantive engagement on this issue rather than evasive or dismissive commentary, which only obscures this critical topic.
