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In Re: Vakil of the High Court - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in4Ind.Cas.1072a
AppellantIn Re: Vakil of the High Court
Cases ReferredIn Linwood v. Andrews
Excerpt:
letters patent, section 10 - vakil--professional misconduct--sending false notice for a client. - - in attempting to lay down a general rule we cannot do better than quote the words of lord esher, (then master of the rolls) in connection with the duties of a solicitor reported in in the matter of major coake, a solicitor 86 l. he has no right to forsake his client on the ground of a suspicion of his own or on the ground of a view which he may take as to the ultimate success of his client......been paid on account of the engine at the date the letter was written was false according to the vakil's own evidence and we have no doubt the vakil knew it was false. in fact he makes no suggestion to the contrary in his evidence and did not ask to be allowed to make any personal statement in the matter before this court. we can come to no other conclusion than that the vakil knew that the statement was false and that he know that it was made in furtherance of a scheme for defrauding rv. he then lent himself to the attempt to carry out what he knew to be fraud, and in our judgment he was guilty of professional misconduct. in linwood v. andrews 58 l.t. 612 a barrister who was held to have made himself a party to a fraud by conspiring with others and induced a party to put in false.....
Judgment:

1. [Their Lordships set out the notice from the High Court to the Vakil, the evidence in the case and the deposition of the Vakil before the Chief Presidency Magistrate].

2. If we accept the statements made by the Vakil in his evidence as true and it was never suggested by Mr. Rosario that they were not, it is clear that the receipts by which Rp. purported to acknowledge the receipt from A of Rs. 2,675 all were or one of them was false, that Rs. 1,175 had only in fact been paid and that the difference of Rs. 1,500 when extracted from Rv. was to go to A the man who according to the case put forward on behalf of the Vakil was acting as agent of Rv., the purchaser of the engine. The statement made in the letter of July 17th that Rs. 2,675 had been paid on account of the engine at the date the letter was written was false according to the Vakil's own evidence and we have no doubt the Vakil knew it was false. In fact he makes no suggestion to the contrary in his evidence and did not ask to be allowed to make any personal statement in the matter before this Court. We can come to no other conclusion than that the Vakil knew that the statement was false and that he know that it was made in furtherance of a scheme for defrauding Rv. He then lent himself to the attempt to carry out what he knew to be fraud, and in our judgment he was guilty of professional misconduct. In Linwood v. Andrews 58 L.T. 612 a barrister who was held to have made himself a party to a fraud by conspiring with others and induced a party to put in false affidavits was committed for contempt by Kay, J. In In re Stewart L.R.2 P.C. 88; 16 W.R. 1000 where the Privy Council discharged an order striking an attorney off the rolls of the High Court of Bengal in a case in which the attorney had inserted a deed a recital which he knew to be false, they did so upon the ground that upon the evidence the irregularity was wholly unconnected with fraud and that being so the penalty inflicted viz., striking off the rolls was not justified. They were, however, careful to add: 'They desire expressly to state that they do not in recommending to Her Majesty the discharge of the order, in any way sanction the propriety of deeds being prepared which on the face of them are inconsistent with fact.'

3. Seeing that the statement as to the amount which had been paid was false to the knowledge of the Vakil when he wrote the letter of July 17th the fact that the letter purports to be under instructions from the client Rp. is in our judgment no answer to the charge of unprofessional conduct against the Vakil.

4. Mr. Rosario invited us to take into view that the transaction in connection with the sale of the engine was analogous to what he suggested was of common occurrence in the mercantile world, i.e., an exaggerated statement as to the price given for an article which the owner is desirous of re-selling.

5. We express no opinion as to the morality of the proceedings suggested. We do not think the case before us can be described as analogous. Here as was pointed out from the Bench during the course of the argument, according to the case put forward on behalf of the Vakil, A was the agent of the purchaser. The object of the scheme as it seems to us was to enable A to pocket Rs. 1,500 on the transaction without the knowledge of the purchaser, his principal and we are of opinion that the Vakil knew this when he wrote the letter of the 17th July.

6. A hypothetical case suggested in the course of the hearing of this motion was that of a Vakil who calls a witness by whom he has been told that the evidence which the witness is prepared to give is not true. If a solicitor when taking a witness's proof is told by the witness that he is prepared to give evidence which is not true we have not the least hesitation in saying that it would be the duty of the solicitor to decline to take the proof of the witness or to call him as a witness and that if he fails in this duty he is guilty of professional misconduct. There is, of course, no reason whatever why the same rule should not be held to apply in the case of a Vakil who discharges the functions of a solicitor and counsel.

7. Mr. Sundara Iyer who appears in support of the notice to show cause expressed a desire that some guidance should be given by the Bench as to what constitutes unprofessional conduct. In attempting to lay down a general rule we cannot do better than quote the words of Lord Esher, (then Master of the Rolls) in connection with the duties of a solicitor reported in In the matter of Major Coake, a solicitor 86 L.T.N.R. 468 'A solicitor is bound to act with the utmost honor with regard to his client. He is bound to make every exertion on behalf of his client short of that which is unfair fighting as against his client's antagonist and short of that which would be degrading to himself as a man of honor. Neither a solicitor nor a barrister is bound to degrade himself even for the purpose of carrying his client's case. Neither a barrister nor a solicitor ought to fight unfairly as against the adversary; but short of that the duty of both a solicitor and a barrister to his client is to use every effort to bring his client's case to a successful issue and neither solicitor nor barrister is entitled to set himself up as a Judge of his client's case; he has no right to forsake his client on the ground of a suspicion of his own or on the ground of a view which he may take as to the ultimate success of his client. He is bound to do everything which he can, as I say, to succeed for his client, except to degrade himself or except to do that which is unfair fighting as against his antagonist. Now the duty to his client seems to me to be a duty arising from his relation to his client. He has no relation to the adversaries of his client which makes any contract or relation of duty to them. What I have said about his not fighting unfairly against them rather goes to that which if he did it would be degrading himself as a gentleman and as a man of honor. It must be degrading to a man to fight unfairly. The solicitor has a duty also to the Court and to his profession but to the Court especially. It is a breach of duty and a dishonorable breach of duty, wilfully to mislead the Court by keeping back from the Court information which he knows the Court ought to have, or certainly by misleading the Court by stating facts which he knows to be untrue. And if a solicitor or a barrister were to wilfully mislead the Court upon matters which he knows that but for his misleading the Court, would come to the knowledge of the Court and would cause the Court to act differently from what he is trying to make the Courts do, that seems to me to be dishonorable conduct. How far a solicitor or a barrister may go on behalf of his client is a thing far too difficult to be capable of an abstract definition. But when you come to concrete cases everybody can immediately say whether the thing which has been done is or is not a breach of honor.'

8. It seems to us that it would be of assistance particularly to the younger members of the profession if rules could be laid down by the Vakils' Association indicating the view of the Association in cases where questions of professional conduct may be involved.

9. In the matter which is now before us we do not think a mere formal censure would meet the requirements of the case. We order that the Vakil be suspended from practice as Vakil for six months, to run from the date of the issue of the notice.


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