TN Bar Council imposes Rs 1 lakh costs for frivolous complaint, recommends protective measures for advocatesMay 5 2019
A Disciplinary Committee of the Bar Council of Tamil Nadu and Puducherry recently found it appropriate to impose Rs 1 lakhs as costs on the complainant before it, finding that he had filed a frivolous complaint against advocates in an attempt to turn the Bar Council “into his playground to achieve his personal and ill-motivated wishes.”
In passing an order to this effect, the three-member committee comprising of Chairman R Singaravelan and Members S Ilamvaludhi and Ravi Shanmugam highlighted,
“The duty of the Bar Council is not only to regulate the conduct of the advocates but also to protect their interest and dignity in the interest of the legal profession, and the public.
If the advocates are allowed to be blackmailed by a party to achieve their ill-motive, then not only the fearless, bold and conscience-oriented approach of the advocates towards the litigants will get upset, but also the independent and impartial role of the advocates to safeguard the Judicial system which is the basic structure of our constitution will also get upset.”
As per the Committee’s order passed last month, the peculiar complaint before it involved allegations that two Tuticorin-based advocates had colluded with his adopted mother to deprive him the benefit of certain property in her name.
With respect to this property, a 2009 Settlement Deed had initially been created by the adopted mother in the complainant’s favour. However, this Deed was cancelled in 2013. In 2016, the adopted mother leased out accommodation on the property to two advocates.
In this backdrop, two sets of legal proceedings assume relevance. On the one hand, is a civil dispute between the complainant and his adopted mother over her property. The adopted mother’s 2013 cancellation of the 2009 Settlement Deed was successfully challenged by the complainant before a Principal District Munsiff, Tirunelveli. An appeal filed against the same by the adopted mother is still pending before the Principal Sub Judge.
On the other hand, is the civil dispute between the advocates and their landlady i.e. the complainant’s adopted mother. As per affidavits filed by the two advocates before the Bar Council, the landlady eventually refused to give back their deposit of Rs 50, 000, while insisting on their eviction from her property. The advocates, therefore, continued possession of the property. Later on, a suit filed by them in the matter allowed them to recover the due deposit from the landlady. This suit was filed seeking a permanent injunction against the landlady, claiming that they were in lawful possession of the property,
The complainant appears to have viewed the transactions between the two advocates and his adopted mother as an obstacle to his endeavour to get back her property. The Bar Council eventually concluded that, in order to take the lawyers out of the equation altogether, the complainant had approached the disciplinary committee.
His complaint alleged that the two advocates had created the lease deed and initiated their civil dispute “as if they were in possession of the property” in collusion with his adopted mother, as part of a ploy to deprive him of his claim to the property.
The Bar Council Committee, however, saw no merit in his complaint, observing in its order that,
“He [the complainant] cleverly thought that the respondents being the advocates would help his mother and be an obstacle to, capture the property from his mother. Hence, he wanted to drive them out and unfortunately, the respondents got a protective decree from the Civil Court. Hence, with a view to threaten them he has come out with the present complaint…
… The complainant with a view to grab his mother’s property at the fag end of her life has sent a threatening signal to the advocates to prevent them from appearing for her.”
Castigating the apparent attempt to frame the two advocates, the Bar Council committee proceeded to note,
“… we are really shocked to note the conduct of the complainant who fearlessly has gone to the extent of making reckless allegations against the reputed professionals, who are the officers of the court…
… The way in which the complainant has treated the respondents has caused mental turmoil making us to spend sleepless and fearful nights as no advocate can be free from this type of complaint. The complaint has made the legal profession more burdensome, fearful and painful.”
In view of its observations above, the Committee concluded that the complaint before it was a false one. It proceeded to observe,
“Such a type of complainant cannot be left with free hand as he may resort to the same type of practice again and again. A person who chooses to fight against his own parents cannot be spared as he may be an eternal headache to the society. Somewhere he has to be taught a lesson to make him to repent for his misconduct and reform him.”
Therefore, the complainant was directed to pay Rs 1 lakh as punitive costs. Of this amounts Rs 80, 000 is to be paid to the Bar Council, whereas, Rs 20, 000 was to be paid to the two advocates complained against. The Committee also held that if the same amount is not paid, recovery proceedings may be initiated against the complainant.
“… we wish to send a clear message to the society that nobody should come forward with a frivolous complaint against the advocate and disturb him in discharge of his duties as it is the advocate who is one of the two wheels of Judicial Chariot marching towards the destination called Justice,” the Committee observed.
On frivolous complaints against Advocates
“An advocate has played a dual role as in movies, one is an officer of the court and another one is a sincere advocate for their client. Most of the time both cannot be performed at the same time and as a result, he has to cut a sorry figure either before the court or before his client,” remarks the Disciplinary Committee in its order.
The Committee proceeded to make certain pertinent observations while deprecating the general proclivity to scapegoat lawyers. As observed in the order,
“Against them [lawyers] now-a-days, frivolous complaints are being given even for charging the legitimate tees, for the delay in disposal not owing to the advocates’ Conduct, for the loss of xerox copies of the documents, for the unavoidable absence of an advocate for one or two hearings, for the friendly smile towards the opposite counsel, for the acceptance of the proposition suggested by the Court in the interest of their own client, for the misunderstanding with the neighbours and the family members.”
While this is the case, the Committee pointed out that the misuse of the Bar Council’s disciplinary process often comes at a heavy cost for the accused advocates.
“It is to be noted here that we cannot reject such a frivolous complaint without calling for any explanation from the advocate concernecl under Sec. 35(1) of the AdvocatesAct, 1961 read with the Bar council of India Rules.
The moment the advocate gets such a notice from the Bar Council, the headache starts for him as he has to get his explanation ready with neatly typed with supporting documents and give seven copies of the same to the Bar Council within the stipulated time. Till it is decided, the concerned advocate cannot sleep peacefully and opt for any coveted post.”
The order also adds that in some cases, even lawyers are not above filing frivolous complaints against their opponents.
“Sometimes even the opposite parties do lodge a complaint against the advocates of their opposite parties to victimise and threaten their opposite parties advocates.”
Implement protective measures for Advocates against frivolous complaints
The Disciplinary Committee proceeded to note that ultimately, the reputation of the advocates is thrown to the discretion of the Elected Body of the Bar Council. This is given the vague limits of the limitation period to file professional misconduct complaints, as well as the absence of a statutory definition for professional misconduct itself.
On these aspects, the following observations of the Committee are relevant.
“… there is no time limit also fixed for the preference of a complaint against an advocate under Sec. 35 (1) of the Advocates Act, 1961. The cause of action of which has arisen 10 years before also can be the subject matter of the complaint and as a result an advocate has to trace the papers of 10 years old cases to give suitable reply to the Bar Council.
… neither the professional misconduct nor any other misconduct is defined either in the Advocates Act, 1961 or in the Bar Council of India Rules. Sometimes, the complaint is used to be given against him even forgetting the bundle and change of vakalat from the advocates…
The Committee proceeded to suggest that the Bar Council of India implement corrective measures to protect advocates against the filing of frivolous disciplinary complaints.
“… unlike the doctor and patient relationship, the relationship of the advocate and clients continues even after generation and thus the advocates have to live with the headache of his clients and like a Jesus Christ, he bears the burden for his clients. Hence, we feel that there should be some protective measures for the advocates too.
we therefore, request the Bar Council of India to take immediate steps to get the professional misconduct defined and also get the time limit prescribed for lodging a complaint either by itself or through the Parliament.“
Read the order of the Bar Council of Tamil Nadu and Puducherry:
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