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
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.
bharat khatwani
08 August 2024 at 07:50
Following post was posted here a while ago.I request you to revisit same and opine.....don't you think that advocate had violated rule 4 and 5 of guidelines of bar council by sending legal notice????.....Rule 4: Play Fair with the Other Side
Lawyers (advocates) must follow the law and keep things fair for everyone involved in a case. This means they can't do anything illegal or unethical against the other party. Examples include:
Making up fake evidence
Tampering with what witnesses say
Personally attacking the other side
Rule 5: Client Says Jump, You Say "Hold On..." (Sometimes)
Lawyers have to fight hard for their clients (zealous representation), but they also get to use their own judgment. This means a lawyer can refuse to:
Take a case they believe is based on lies
Use arguments or tactics they think are unfair Anonymous (Querist) 20 September 2011This query is : Resolved THE HON'BLE HIGH COURT DISPOSED OFF A CASE RELATING TO THE ORDER OF DRT APPELLATE TRIBUNAL IN DISMISSING THE APPEAL FILED BY A GURANTEER. IN THE ORDERDTD.09.08.2011 PASSED IN THE PRESENCE OF THE COUNSELS OF BOTH SIDE, THE HON'BLE HIGH COURT SET ASIDE THE ORDER OF DISMISSAL WITH A DIRECTION TO BOTH SIDE TO APPEAR BEFORE APPELLATE TRIBUNAL ON 29.04.2011, ON WHICH DATE THE APPELATE TRIBUNAL SHALL FIX A DATE FOR FINAL HEARING OF THE APPEAL.IN THIS CONTEXT AND WHEN THE GURANTEER/ APPELLANT HAS NOT RECIEVED THE CERTIFIED COPY OF THE ORDER OF THE HON'BLE HIGH COURT IS IT LEGAL ON THE PART OF THE BANK ADVOCATE TO SEND A LEGAL NOTICE ON16.08.2011 TO THE GURANTEER EVEN ASSUMING THAT, THE BANK HAD INSTRUCTED HIM TO DO SO SPECIALLY WHEN THE ORDER OF THE HON'BLE HIGH COURT IS PASSED IN HIS PRESENCE. WHAT SHOULD BE THE LEGAL OBLIGATION OF THE ADVOCATE OF THE BANK IN SUCH A PECULIAR SITUATION?
Read more at: https://www.lawyersclubindia.com/experts/Legal-liability-of-an-advocate-while-sending-a-notice-231961.asp
bharat khatwani
22 June 2024 at 10:38
My tenant has sent legal notice with baseless claims and without any supporting documents and has stopped paying rent. I have responded to this legal notice through advocate but tenant has not started paying rent. One of claim is for reimbursement of 100,000 (equal to 30 year's rent) spent by tenant for repairing, done without sending notice, he has not even provided bills, vouchers etc. to support his claim.. As per rent act tenant can demand repairing cost up to rent of 4 months only. I have asked him to withdraw notice and start paying rent. Is there any method of "quashing" legal notice? Is legal notice part of Judicia process ? Is there any provision of IPC similar to Section 340 CrPC & under Section 195 which may be used against BASELESS LEGAL NOTICE ?
Anonymous
19 June 2024 at 18:05
Hi Sir, My Father bought Educational Loan - 10 lakh in 2009 , for my sister to pursue MBBS. She Died in 2015 while working as a Government Doctor due to Septic Shock. After a Year My Mom (Guarantor ) Died Due to Kidney Failure.Both the Borrower and Guarantor Died. Bank Filed a Case on DRT Three years Ago.Now the Final Order from drt has came.
Now bank sent me a sarfaesi notice u/s 13(2) two months ago with demanding an amount of 34 Lakhs. I Sent an OTS Offer of Rs. 12 Lakhs and I have waited for their reply for two months but there is no reply from bank. So I Approached the bank after 60 days. Now they told me that we can't do anything and we are going to auction off your house.
To Avoid Auction process, I Sent an Another OTS Offer of Rs.18 lakhs but still no reply from bank.
I Never Want My House to be Auctioned.
What Should I Do Now? How to Approach this Matter?
Anonymous
01 July 2022 at 00:51
Hi,
I was recently detained by UP Police (Phantom) and got released after furnishing bail bond. At the time of my arrest (I wasn't aware it was arrest), that we (Phantom) are asked to take you to police station because we have a written complaint from your wife. Since my wife have many times dialed 100 and woman hotline number many times in past few months and as a process both of us had to visit the local PS and from there the Police usually advised my wife to take the matter to court. However this time I was taken to PS on 1 June at 21:30 hrs and wasn't informed until next day that I have been booked under CrPC 151 and the form submitted to SEM read that "while our patrol on June 1, we found this person yelling and fighting with his wife and attempted to warn him. But the person overlooked our warning and thus has been detained under sec 151". The form didnt mention my wife or the context of detaining me. There was clearly no violence at the time of my arrest and I cooperated with Phantom police and wilfully went with them. If I would have been doing such a misconduct the neighbours would have watched too. The police came in silently, first called up my wife on the gate and then showed me a written copy of her complaint filed a week ago. The Phantom police told told me that they are taking me to PS because of that written complaint. Is such detention lawful? Can I establish that such detention was caused by my wife's action? Kindly advise
Anonymous
22 June 2022 at 11:40
The builder had passed the layout with common plot from Vadodara Mahanagar Seva sadan during the year 1991 claiming to construct a society.
Out of 45 House, They built 33 Houses & remaining 12 plots sell to the members.
While making of a dastavej with all 45 stakeholders, The Builder had put a condition of Keeping all rights of Road & Rasta as well as common plot with him to the extent of selling of it by him to any of the member in a society & with this consent as well as agreement on part of stakeholder only made an agreement of sale deed duly registering of it in a registrar office with all members.
Simultaneously, They divided the area of common plot in 12 Plots & sold it to 12 members of the society with a condition of not making any construction in common plot area. The 12 members had also paid stamp duty for that & registered their dastavej with part area of common plot.
So, Right from the beginning the common plot is only appearing in Layout passed by VMSS but physically it was not at all framed right from the beginning in the society.
Also, Even till Today the society is neither registered nor elected any president or Pramukh officially.
Now, After a span of almost 30 years one House from the slot of 33 House has been sold & the new stakeholder(Only one member) has initiated the process of opening of common plot with VMSS.
Query : (1) Can 12 members can get a benefit of Adverse Possession?
(2) Can 12 members possession of common plot can be challenged in the court by any of
33 members, who had already given a consent of waiving off of the rights of Road /
Rasta & common plot to the builder during the year 1991-95?.
(3) The property card has also been made accordingly for all the members & paying Tax to
the VMSS individually
(4) The 12 members have also not made any construction in common plot area except a
boundary wall for protection purpose & use it as a Garden.
Kindly advise in this regards.
Anonymous
31 May 2022 at 03:55
Myself was married with my husband while I was 16 years old. Now I am 20 years.
Can I say I am legally married wife ?
Nidhin M
13 May 2022 at 17:50
My mother's sister has been staying with us for the past 50 years. She is unmarried and 75 years old. Recently she left our house and started staying with a lady(40 years old) who is completely unrelated to our family. My mother's sister was showing some signs of mental issues before leaving our house. We had many times tried to get her examined by a psychiatrist before she left our house but she was not ready to co-operate with us. She was taking some anti-depressant medicine before leaving our house. We believe that she is suffering from some mental illness that is the reason she left our house.
The lady with whom our aunty is staying now was our neighbour for a couple of years and at that time she could able to establish a good relationship with our aunty and now her house is away from our house but regularly visits our neighbouring temples and all. As my aunty was showing some mental issues like, speaking vaguely alone, showing gestures alone, changing mood continuously, etc while staying with us,we tried to get her examined by a psychiatrist but my aunty was like she is absolutely fine. This unknown lady told my aunty that our family is trying to make my aunty a mad person and now my aunty believes that. Now, this lady is not allowing us to see our aunty.Her intention is to grab property in her name. He is taking a stand that a person who attained the age of majority can live with anyone at their wish. My aunty is also not ready to cooperate with us.
Could you please help us to understand whom should we approach to get her examined by a psychiatrist and give her the proper required treatment.
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Is advocate guilty?
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.