1. The point,--which arises in this Civil Reference by the learned District Judge of Balasore, regarding the conduct of one Sri Jagannath Panigrahi, a pleader,--is whether the pleader is guilty of unprofessional conduct for breach of retainer, under the Vakalatnama which the pleader accepted, signed and appeared for certain parties in a mutation case, in respect of certain lands, and then, notwithstanding the said retainer by his said former clients, the pleader subsequently appeared for the opposite party in a criminal proceeding, connected with the same lands in dispute.
2. The facts are few and simple; Sri Jagadananda Panigrahi, pleader of Nilgiri, in the district of Balasore, appeared in a certain mutation case for fixation of rent and correction of settlement entry filed by certain persons (who were Sri Panigrahi's clients in the mutation case); the mutation petition was, however, drafted by another pleader; on May 21, 1957 Sri Panigrahi had accepted and signed the Vakalatnama in the said mutation case; in connection with that case, he moved a petition to call for certain records on June 26, 1957; it is said that, since thereafter, the parties in the said mutation case, for whom Sri Panigrahi appeared did not come to him and Sri Panigrahi never appeared for them on any subsequent date; thereafter Sri Panigrahi's said former clients in the mutation case started a criminal proceeding against the opposite party under Section 145, Criminal Procedure Code which is connected with the said earlier mutation case; On December 6, 1957 Sri Panigrahi accented and signed a Vakalatnama given by the Second party in the Criminal case and certified that he does not appear nor does he 'hold brief for the opposite party' being the 1st party in the Crl. case (that is to say, his former clients in the mutation case). Thus, in the said subsequent criminal proceeding Sri Panigrahi appeared for the second party, challenging the actual possession of the said disputed lands, claimed by the First party, for whom Sri Panigrahi had appeared in the said earlier mutation case.
Both the proceedings related to the same lands and the dispute was between the same parties in both the cases; in the objection petition dated December 6, 1957 admittedly signed and filed by Sri Panigrahi on behalf of the Second Party in the criminal proceeding, for whom Sri Panigrahi subsequently appeared, the second party disowned the possession of the First Party for whom Sri Panigrahi appeared previously in the said mutation case, in respect of the same lands. It appears that the earlier mutation case was still pending on the file, when the subsequent criminal case cropped up. The points, to be agitated in both the cases, were substantially the same, namely, as to which of the parties were in actual possession of the lands in dispute.
3. It is on these facts that a complaint petition was filed by Sri Panigrahi's former clients in the mutation case on March 29, 1958 in the Court of the District Judge for appropriate action against Sri Panigrahi, on the grounds stated in the said petition including, inter alia, that Sri Panigrahi had learnt everything about the case from them, and that knowing the said mutation case to be still pending, Sri Panigrahi had appeared for the opposite party in the said subsequent criminal proceeding.
Sri Panigrahi filed an explanation on August 28, 1958, his detence to the charge being that he was never entrusted with any confidential information by his former clients, and that he had already clearly forgotten about the subject-matter of the mutation case and about his appearance therein, at the time when he appeared on behalf of the Second party in the said Criminal Case; that his former clients had never approached him for appearing in the subsequent criminal case, and as such, the pleader claimed that he cannot be held guilty, and accordingly he prayed for being exonerated of the charge of allege unprofessional conduct.
4. The learned District Judge,--on consideration of the facts and circumstances of the case--held that Sri Panigrahi was technically guilty but in the special circumstances of the case, the learned District Judge recommended a token punishment of suspension of one day only,
5. On the question of legal effect of retainer under a Vakalatnama, the relevant portion of the form (English) of a Vakalatnama,--which Sri Panigrahi had accepted and signed,--is, for convenience of reference, set out as follows:
'Know all men by these presents, that by this Vakalatnama, we petitioners in the aforesaid case do hereby appoint and retain .......... Pleader to appear for us in the above case and to conduct and prosecute or defend the same and all proceedings that may be taken in respect of any application connected with the same, or arty decree or order passed therein, including all applications for return of documents or receipt of any monies that may be payable to us in the said case and also in applications for reviews and in appeals'.
The word 'retain' in the Vakalatnama had a legal significance. The English concept of retainer for lawyers is thus not without purpose, introduced in the Indian Vakalatnama.
A retainer is the engagement of a pleader or an advocate to give his service to a client, and involves the payment of a fee--the acceptance of a retainer binds pleader or advocate to accept a brief on behalf of the client who retains him and not to accept a brief from his opponent. One of the most important principles,--on which rules relating to retainers are based,--is that a pleader or an Advocate ought not to accept a brief against a former client, because, he, by reason of his former engagement, is likely to know of anything which may be prejudicial to the client in the later litigation. The word 'retained'--with its aforesaid legal import, has also received statutory recognition in Section 13(a) of the Indian Legal Practitioners Act (Act 18 of 1879), which provides that the High Court may also, after such inquiry as it thinks fit, suspend or dismiss any pleader or mukhter holding a certificate who takes instructions in any case except from the parfy on whose behalf he is retained.
6. In this particular context, the pronouncement of their Lordships of the Privy Council,--
on the high standard of conduct expected of a pleader and with that end in view, on the conventions to be followed by a pleader,--is often reiterated by the courts in India. Their Lordships of the Privy Council held that such improper conduct of a legal practitioner,--who has acted for one party in a dispute, such as there was in this case, acting for the other party in subsequent litigation between them relating to of arising out of that dispute,--is, to say least of it open to mis-conception, and is likely to raise suspicion in the mind of the original client and to embitter the subsequent litigation; indeed this is a matter which concerns the honour of the profession.
A full Bench of this Court,--in a recent decision under the Indian Bar Council Act, the principles of which are substantially the same as the Legal Practitioners Act, by which Sri Panigrahi as pleader is governed,--held that the principle underlying the ban, prohibiting an Advocate from appearing for the opposite party against his former client, is that there is the likelihood or possibility of misuse of the instructions given to him by his former client; it is not a question whether the misuse has been actually made; the mere possibility of such misuse in a matter, which is connected with the previous litigation is sufficient (Mary Lilian Hira Devi v. Kunwar Digbijai Singh, 21 Cal WN 1127 at p. 1142: (AIR 1917 PC 80 at p. 84); State v. Lalit Mohan Nanda, AIR 1961 Orissa 1 (FB)).
7. In the present case, Sri Panigrahi had appeared for the opposite party in the criminal case, when the mutation case was still penciling. In both the cases, the dispute was regarding actual possession of the lands in question. The pleader's alleged lapse of memory of his having appeared in the earlier mutation case or of the instructions given therein is no defence to the charge of unprofessional conduct, in appearing for the opposite party. The pleader lays himself open to punishment if he infringes the rule and does not maintain that standard of fidelity to his client which is expected of persons professing to deserve the degree of confidence which must of necessity be placed in a legal practitioner by his client; proper professional conduct is not a mere matter of compliance with technical rules; it is one of which every one who aspires to be called a 'gentleman of the law' should have an instinctive appreciation; the conduct of a pleader,--who had already accepted and signed the Vakalatnama and appeared for his client and received his confidence in the matter, but who notwithstanding that confidence accepts retainer under a Vakalatnama from the other side in a subsequent proceeding referring to the same subject-matter and falsely certifies (as Sri Panigrahi did in the present case) that he does not appear nor does he hold brief for the opposite party,--deserves the severest censure.
A legal practitioner cannot represent conflicting interests or undertake the discharge of inconsistent duties: when he has once been retained and received the confidence of a client, he cannot accept a retainer from or enter the service of those whose interests are adverse to his client in the same controversy or in the matter so closely allied thereto as to be, in effect, a part thereof; the rule is rigid and is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights or the interests which he should alone represent; fidelity is required from all who hold fiduciary relations; they must not lightly enter upon such relationships, but if they do, they will not be permitted to be disloyal and of all species of disloyalty, desertion and adherence to the enemy or to the opposite party in a litigation is recognised as the worst.
8. Having regard to the facts of this case,--considered in the light of the well settled position in law as discussed above,--I am of opinion that Sri Panigrahi is guilty of unprofessional conduct, and that his alleged lapse of memory is no defence to the charge.
9. As regards punishment, we took a lenient view, in the Full Bench case mentioned above, having regard to the inexperience, young age and the whole life in front of the Advocate concerned in that particular case, and we accordingly repre-manded and warned him for his conduct. In the present case, however, there are no such extenuating oircumstances, We therefore uphold the order of suspension of one day, as punishment for Sri Panigrahi as recommended by the learned Dist. Judge. There will be no order as to costs in these proceedings throughout.
10. I agree.
R.K. Das, J.
11. I agree.