bharat khatwani
11 November 2024 at 22:56
WA message of friend and opine Do you think that advocate is unethical?..............A fraudulent lady seeks partition on our property ignoring us to be included as respondents while we're in possession and occupation of the property. It is the bounden duty of the claimant to prove the fact and the law clearly mentions it. While so, the lawyer takes up the case and drags the suit for decades. Though the court gave its verdict saying that it is fictitious case, the court did not say a word about the advocate who dragged the suit for nearly 10 years. Unless the lawyer who takes up the fictitious case is punished by the court, the number of cases will be getting piled up and it is an absurd judicial system.
bharat khatwani
04 November 2024 at 09:54
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
Anonymous
31 October 2024 at 22:34
Trial court have ordered to Pay the Stamp Duty on a document. Can we pay the stamp duty after Judgment of the Case i.e. Regular Civil Suit ? Is there any case law ?
Javed Ali Khan
30 October 2024 at 04:47
Can any co-landlord without the consent of other co-landlords let out a flat for the purpose of tenancy and accept hefty amount of advance money from the new tenant?
shyam lal
27 October 2024 at 20:41
Uttrakhand UCC will be applicable if an individual dies without making a will (intestate succession). If there is a will, then the UCC laws on inheritance will not apply.
Query..is the same UCC laws applicable to "family settlement" .as applicable to the will.
visuiyer
24 October 2024 at 13:37
I am a sadhu, true bachelor, well disciplined self dependent, in non monastery.
While wandering, on a walk, one person taking my photo/video without my permission. Despite on request not to take photos or videos, he is making attempt to capture photo or video.
I have collected all the information about him. He is a stranger
Can file a case against him, what proof should I need to produce.
Athi Vishal HD
23 October 2024 at 16:18
Respected Sir, my uncle has purchased one property through loan. His 2 Sons are co applicant in this loan.Now my uncle has decided to sell his property. But he is not ready to give share to his sons. Since his 2 Sons are co applicant, is 2 Sons(co applicant) are eligible for their share in that property?
Anonymous
22 October 2024 at 20:26
I got email from NHRC about registration of Case by SHRC on my complaint.
But it will take time for SHRC to act further in the matter.
Due to genuine fear of foul attack and even murder I m going to register private complaint for registration of FIR with MM Andheri East as Inspector has merely registered an NC and not FIR and want to know if I should do it and inform NHRC/SHRC or not. TIA
Please guide. TIA
Saikat Das
21 October 2024 at 11:15
My client purchased a dwelling house from Mr.X who got it from her mother by a registered deed of gift. Mr. X had other brothers but they did not bother and did not raise any hue and cry at the time of execution of conveyance and the property was transferred to my clients name. My client also published a notice in newspaper before buying the property and no objection was raised from any quarter. Even bank provided home loan to my client upon being satisfied with the papers.Subsequently after 2 years one brother of the vendor filed a civil suit in the munsef court challenging the deed of gift and revocation of sale deed impleading my client.In the mean time the doner died and Mr.X is not contesting the suit but my client has filed defense in the said suit.My client is a senior citizen and want to sell the property.Is there any bar?Please advice.
S.Das
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Interim relief for temporary residence
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