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
kunhi marakkar
10 February 2022 at 14:49
I own a single shop room in 3 shop room building.my shop is middle of other two.so wall of my room is common wall between two rooms.
If other two shop room owners going to demolish their room by renovation, can they demolish common wall which is boundary of my room.i want possess my room as it's current position.can i get protection from Court ?I want detain them from wall demolition
Suraj Kumar
13 October 2021 at 09:54
Sir,
My girlfriend who have no source of income has taken Rs 20 Lakh from me through account transfer (NEFT) for purchase of a house in her name.I have documentary evidence from my bank statement. Also I have spent another 5 Lakhs by cash for docoration of the house after purchase.
Now she refused to maintain relationships and marrying me.
Can I lodge 406 IPC and 420 IPC in local PS stating that she has taken the money as loan and refusing to refund ?
Can police directly arrest her without any permission from court ?
Surely she couldn't refund the money. Can I claim to transfer the property to me ?
Anonymous
16 September 2021 at 17:15
Hello,
I have secured admission for post graduation in college at Canada. However, to support my education, I would required loan of 22-25 L (total course expense). We are willing to provide house as a collateral. The house was at the name of my father who is no more and without transferring property papers on the name of my mom we have lost the original sales deed. However, we have got the certified copy of the deed from registrar office and also, we have got the non-objection signed from our other family members. I have been trying to fix this property paper issue but not able to find the way and I am loosing time.
Can certified copy with death certificate and past house tax receipt will work?
What other documents will work as a collateral?
Anonymous
11 September 2021 at 12:25
Sir/Madam,
I have passed out LL.B. exam in 2008 and Company Secretary Exam in 2010. Since 2010, I am in possession of membership of Institute of Company secretaries of India and working in legal department of a Company where my DIR-12 has not been filed. Now, due to some reasons, I want to enroll me as an Advocate. Please guide me and suggest me the whole procedure which I need to Follow.
I am residing in Noida, Uttar Pradesh.
Thanking You,
Regards
perry ram
13 February 2021 at 22:56
Many flat owners in housing society in Gujarat denies to give flat on rent saying it could not be given to students as well service people bachelor under rent agreement. Is there any Rules for said denial? Please guide urgently. Thanks. E mail : perryram13@gmail.com. Paresh Thakkar.
Anonymous
11 January 2021 at 20:58
I am landlord and i am from chennai tamilnadu rented a house on nov 2013 giving rent correctly after making delay for years now due has gone to 10 lakhs for 2013-2014 agreement is there for 4 years i didint renewed the agreement ,then again i renewed on jan 2019-nov2019 ,dec2020-oct 2020 we spoke they gave written statement in 100 rs stamp that they will clear the dues and vacate the house on 31 dec 2020 and i have the audio and video recording what they spoke and threatening sometimes .but now they are saying we need 6 months time and i dont have trust on them . if i go legal according to new tenancy act 2017whether i can claim all the dues and I am in much depression because of them because if i file a case it will take many years to get judgement so what i can do .please explain briefly. and can i lodge a complaint against tenant
Vanita Chauhan
09 January 2021 at 19:58
I had a house on my name which was paid for by me. My father (now deceased) duped me into signing the documents. He then went on to sell the house and then purchased another house using the proceeds from my house.
My father passed away and legally my mother is the heir. My mother denies it, inspite of knowing the details. I have three siblings who want a share in the house, although it should legally be mine. I live in another city and all the documents are with my siblings/mother who do not want to share it.
What should be my next step? What documents do I need to prove that they do not deserve a share in that house.
Anonymous
02 January 2021 at 20:00
Is there any issue in adding an Executor in the Will?
What is the procedure if the Executor does not execute the Will?
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