PROFESSIONAL ETHICS

AND PROFESSIONAL
ACCOUNTING SYSTEM

PROFESSIONAL MISCONDUCT
CASE COMMENT
JOHN D’SOUZA V EDWARD ANI

SUBMITTED BY :GAYATHRY GIRI

5/8 TH BBA LLB(HONOURS)
ROLL NO: 34
 INTRODUCTION

Professional misconduct is conduct which falls beyond of what a profession's regulating body
deems appropriate or deserving of its members. The term "professional misconduct"
describes unethical or dishonourable behaviour unbecoming of an advocate. The conduct of
advocates is covered in Chapter V of the 1961 Advocate Act. It describes provisions
pertaining to sanctions for ethical violations and other transgressions. According to Section
35(1) of the Advocate Act of 1961, a State Bar Council must refer a case to its disciplinary
committee for resolution if it has reason to believe that an advocate listed on its roll has
engaged in professional or other misconduct after receiving a complaint or for any other
reason.
Generally speaking, the legal profession is not a trade or business; rather, it is a kind,
honourable, and clean vocation. Members of this profession must work to ensure that their
clients receive justice while refusing to support dishonesty and corruption. The way that the
profession's members conduct themselves determines the credibility and reputation of the
field. It represents a strong bond between the Bar and the Bench.
JOHN D’SOUZA V EDWARD ANI on 17 December, 1993
Bench: S.RATNAVEL Pandian, . (J)

FACTS OF THE CASE

The appellant who is an Advocate in Bangalore practicing since 1942 was proceeded against
for professional misconduct on the basis of a complaint dated November 7, 1986 lodged by
the respondent, Mr Edward Am with the Karnataka State Bar Council (Bangalore) under
Section 35 of the Advocates Act alleging that the appellant with whom a will dated July 1,
1968 executed by his mother-in-law, Mrs Mary Raymond was entrusted for safe Custody
against receipt dated July 5, 1968 bearing Serial No. 576 in his register of Wills, refused to
return that will In spite of two letters dated January 4, 1982 and April 15, 1986 demanding
the appellant to hand over the will kept in his custody and that the appellant thereby has
committed professional misconduct.
Mr N.E. Raymond and his wife, Mrs Mary Raymond were the clients of Adv. John D’Souza.
Mrs Mary Raymond during her lifetime got her will drafted by advocate John and entrusted
the same after execution and of which the advocate had given a receipt dated July 5, 1968 .
The fact that the will has been deposited with the advocate is supported by an entry in the
register of Wills maintained by the advocate. The execution had appointed her husband as the
executor. Her husband, N.E. Raymond died in the year 1974. Mrs Mary Raymond changed
her lawyer, from Adv. John D’Souza to one Mr George DaCosta as her advocate. According
to Edward Ani, the respondent, son-in-law of Mrs Mary Raymond and who claims to be the
legal representative of her estate state that when Mr George DaCosta requested Adv. John
D’Souza in 1978 to let him have his client's will, Adv. John D’Souza denied having it.
Thereafter, Mrs Mary Raymond was obliged to make another will prepared by Mr George
DaCosta on June 24, 1978.
The second will executed in 1978 was probated on February 21, 1984 after the death of Mrs
Mary Raymond on October 29, 1983.
Edward Ani wrote two letters to Adv. John D’Souza of which one was dated January 4, 1982
was sent on behalf of Mrs Mary Raymond under Certificate of Posting from Manchester
(U.K.)and another letter dated April 15, 1986 by himself under Registered Post . Both the
letters were addressed to Adv. John D’Souza, requesting him to return the will dated July 1,
1968. But the appellant did not reply to both the letters and kept conspicuous silence.
On being aggrieved at the conduct of the appellant in not replying to his letters and returning
the will kept in his custody, Edward Ani filed a complaint dated November 7, 1986 before the
Karnataka Bar Council. The State Council rejected that complaint holding that there was no
prima facie case made out. The respondent, Edward Ani preferred a revision before the Bar
Council of India which set aside the order of the State Bar Council and allowed the revision
holding that there existed prima facie case of misconduct against the respondent (advocate)
and remitted the matter to the Disciplinary Committee of the State Council.
The parties appeared before the Disciplinary Committee of the State Bar Council. The
appellant filed his reply on July 3, 1989 to which the respondent filed his rejoinder on August
12, 1989. The Disciplinary Committee of the State Bar Council by its order dated June 7,
1990 again held that the respondent was not guilty of professional or other misconduct within
the meaning of Section 35 of the Advocates Act, 1961 as alleged by the appellant.
Being dissatisfied with the order of the Disciplinary Committee, the appellant preferred an
appeal before the Disciplinary Committee of the Bar Council of India which by its order
dated June 4, 1993, disagreed with the findings of the State Bar Council and allowed the
appeal by setting aside the order dated June 7, 1990 and held that "the complainant, has
succeeded in proving that the advocate has committed professional misconduct and is hereby
liable under Section 35 of the Advocates Act, 1961". The Disciplinary Committee further
suspended the appellant from practice for a period of one year.
The advocate then filed a Stay Petition under Section 14(2) of the Advocates Act before the
Disciplinary Committee of the Bar Council of India praying to stay the operation of its order
dated June 4, 1993 suspending him from practice, so as to enable him to prefer an appeal
before Supreme Court. The Disciplinary Committee of the Bar Council of India vide its order
dated June 23, 1993 suspended the impugned order for one month from the date of
communication of the order.
ISSUES

Whether Professional Misconduct was happened by the Appellant (Advocate) or

not.

STATUTORY PROVISIONS
1. Advocates Act,1961. Chapter V CONDUCT OF ADVOCATES
Section 35. Punishment of advocates for misconduct.―(1) Where on receipt of a
complaint or otherwise a State Bar Council has reason to believe that any advocate on its
roll has been guilty of professional or other misconduct, it shall refer the case for
disposal to its disciplinary committee.
(2) The disciplinary committee of a State Bar Council shall fix a date for the hearing of
the case and shall cause a notice thereof to be given to the advocate concerned and to the
Advocate-General of the State.
(3) The disciplinary committee of a State Bar Council after giving the advocate
concerned and the Advocate-General an opportunity of being heard, may make any of the
following orders, namely:―
a) dismiss the complaint or, where the proceedings were initiated at the instance of the
State Bar Council, direct that the proceedings be filed;
b) reprimand the advocate;
c) suspend the advocate from practice for such period as it may deem fit;
d) remove the name of the advocate from the State roll of advocates.
(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he
shall, during the period of suspension, be debarred from practising in any court or before
any authority or person in India.
(5) Where any notice is issued to the Advocate-General under sub-section (2), the
Advocate-General may appear before the disciplinary committee of the State Bar
Council either in person or through any advocate appearing on his behalf.
2. Section 37. Appeal to the Bar Council of India. ―(1) Any person aggrieved by an order of the
disciplinary committee of a State Bar Council made 3 [under section 35] 4 [or the Advocate-
General of the State] may, within sixty days of the date of the communication of the order to him,
prefer an appeal to the Bar Council of India. (2) Every such appeal shall be heard by the
disciplinary committee of the Bar Council of India which may pass such order 4 [(including an
order varying the punishment awarded by the disciplinary committee of the State Bar Council)]
thereon as it deems fit
3. Section 38. Appeal to the Supreme Court.―Any person aggrieved by an order made by the
disciplinary committee of the Bar Council of India under section 36 or section 37 1 [or the
Attorney-General of India or the Advocate-General of the State concerned, as the case may be,]
may, within sixty days of the date on which the order is communicated to him, prefer an appeal
to the Supreme Court and the Supreme Court may pass such order 1 [(including an order varying
the punishment awarded by the disciplinary committee of the Bar Council of India)] thereon as it
deems fit:

ARGUMENTS
PETITIONER

Appellant denied of having the will of Mrs Mary Raymond entrusted to him.The will in
question had been revoked and returned on January 13, 1982 presumably to Mrs Mary
Raymond who was then alive. That fact is supported by an endorsement made by the
appellant's wife in the register of Wills and that even assuming that the will had not been
returned, the appellant cannot be said to have committed any breach of trust by retaining
the revoked will which after its revocation had become a mere scrap-paper; that the
appellant cannot even by imagination be said to have entertained any dishonest or oblique
motive or Carried any pecuniary profit by keeping the revoked will which had become res
nullius and indisputably was a worthless paper having no value.

RESPONDENT

The appellant kept the will in his custody in the nature of a Trustee. And he didn’t return
the will which he was entitled to return on demand.Mrs Mary Raymond nor the
respondent, being the legal representative of the estate of the testatrix, had abandoned the
will which was their property, so it cannot be said that the will had become res
nullius.Appellant should have received the first letter or at least deemed to have received
that letter which had been posted from Manchester under Certificate of Posting. Appellant
had blatantly violated the relationship of the client and the attorney created under law and
betrayed the trust and confidence reposed by the respondent in him.

JUDGEMENT

The Supreme Court determined that the advocate had violated his professional
obligations and had engaged in improper behaviour.
The supreme court held that in the case of the complainant against the advocate for
professional misconduct is on the complainant. In this case, he was able to prove
that the advocate committed a breach of his professional duty
On the basis of the findings of the State Bar Council and the Disciplinary Committee of
the Bar Council of India, the order was passed. The facts of demand made by Mr DaCosta
to return the will and the appellant having denied of it are made mention of.

But pointed out by the Bar Council of India, there was no convincing evidence that the
appellant had returned the will. As pleaded by the respondent, the will though revoked
was the property of Mrs Mary Raymond and on her death had become his property and
that the said document was not abandoned by either of them.It is disheartening to note
that the documentary evidence and the circumstances bearing the case leave an irresistible
inference that the entry dated January 13, 1982 in the register of Wills should have been
manipulated as if the document had been returned. No doubt, in a disciplinary proceeding
of this nature, the rule is that the charging party has the burden of proving the charge of
misconduct of the respondent. On an overall evaluation of the facts and circumstances of
the case the respondent has proved that the appellant had not returned the will. It has to be
remembered, in this connection, that his earlier stand was that he did not have the will. He
changed the position later and came out with the case that he had returned it in 1982 and
for this purpose he relied upon an endorsement made by his wife in his register of
documents. Thus concluding, in the circumstances, that he had not returned the will
though demands were made first by the testatrix, then by her new lawyer and by the
respondent who was also holding the power of attorney from the testatrix when he wrote
the first letter and was the executor appointed under the second will. The conduct of the
appellant in not returning the will even on demand is unworthy of an advocate belonging
to a noble profession. The appellant has no right to withhold the will. On the other hand,
he was bound in duty to return the said will when demanded because the instrument was
entrusted to his custody by the testatrix, Mrs Mary Raymond only on trust.

Under these circumstances, there is any reason much less compelling reason to interfere
with the impugned order of the Disciplinary Committee of the Bar Council of India. The
Appeal is accordingly dismissed and the stay granted by this Court shall stand vacated.

ANALYSIS

The State Bar Council has found that the conduct of the advocate has not amounted to
"misconduct much less a professional misconduct " and that "he has not proved any 'mens
rea' " on the part of the advocate in withholding the will and given too much emphasis on
the point of delay and the strained relationship between the parties.And also stated that
there is no prima facie case.

There existed a prima facie case when the advocate failed to acknowledge the letters and
fabricated false evidence in registry of wills. Thus the order of the Disciplinary
Committee of the Bar Council of India held him to be guilty of professional
misconduct and suspending the advocate from practice for a’

period one year is respectable.