PROHIBITION AS TO APPEARANCE FOR OPPOSITE PARTY BY AESHA SHETH @LEXCLIQ

The relation between the advocate & his clients is of trust & confidence.

It is the duty of an advocate not to use the information obtained by him as advocate to the determent of his client.

The duties continue even after the relation of advocate & client has ceased.

It is the duty of an advocate not to disclose information communicated to him by his clients.

If the disclosure of such information is allowed, the clients would not disclose their secrets to their advocates & the advocates would not be able to discharge their functions properly.

Section 126 of the Evidence Act, 1872 is relevant in this respect to a great extent as it provides that an advocate is not permitted, unless with his clients express consent, to disclose any communication made to him in the course& for the purpose of his employment as advocate, by or on behalf of his client or state the contents or condition of any document with which he has become acquainted in the course & for purposes of his professional employment or to disclose any advice given y him to his client in the course & for the purpose of such employment.

Proviso to section 126 provides that nothing in this section shall protect from disclosure:

  1. Any such communication made in furtherance of illegal purpose.
  2. Any fast observed by any barrister, pleader, attorney or vakil, in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment. It is made clear in it that is immaterial whether the attention of such barrister, pleader, attorney or vakil was not directed to such fact by or on his behalf by client. It is evident from the explanation to section 126 of the said act that the obligation stated in this section continues after the employment is ceased.
  3. The object of this provision is that there should be absolute confidence between the client & his advocate & this should be protected legally.
  4. In this context section 129 of the said Act is also relevant which provides that no one shall be compelled to disclose to the court any confidential communication which has taken place between him & his legal professional advisor, unless he offers himself as witness, in which case he may be compelled to disclose any such communication as may appear to the court necessary to the known in order to explain any evidence which he has given but no others.
  1. State v/s Lalit Mohan Nanda 2nd May, 1960

This case arises out of proceedings under Sections 10 and 12 of the Indian Bar Councils Act (Act XXXVJII of 1926), wherein an enquiry was made regarding the professional misconduct of Mr. Lalit Mohan Nanda, Advocate, Bolangir, for appearing against his former client in a directly connected litigation, arising out of a family dispute between step-brothers of a Hindu family in the circumstances hereinafter stated.

At the trial stage of the suit, Mr. Nanda was not engaged by either party. Pareswar’s brother Nilagiri filed an appeal against the judgment and decree in the said suit through Mr. Nanda who is Nilagiri’s Advocate, appeared against his former client Pareswar in the said appeal. It was at the instance of the said former client Pareswar that the present disciplinary proceedings had been initiated on the allegation that Mr. Nanda had accepted engagement in the said appeal by Nilagiri with a view to cause loss to Pareswar and further that Mr. Nanda had utilized his knowledge of Pareswar’s case in the earlier original proceedings, based on the documents and papers used and confidential instructions received by Mr. Nanda from his former client Pareswar.

The defense taken by Mr. Nanda to the charge against him is that, while admitting that in Section 107 Criminal proceedings he had appeared for Pareswar, there was neither occasion nor reason for him (Mr. Nanda) to see any document relating to land in that connection and further that if he ever saw any document and received any confidential instruction in that connection he had no recollection, after so many years had passed since that time. Mr. Nanda further states that he had no knowledge of the facts in the civil suit and denies any mala fide intention on his part to cause loss to his former client Pareswar as alleged; and further pleads that his engagement by Nilagiri was bona fide and in the ordinary course of professional work; and that Pareswar’s application to move for taking disciplinary proceedings, after two years was by way of after-thought, improper and mala fide.

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. What weighed with us, in this particular case, is the position that proceedings under SECTION 145 were initially contemplated and Section 107 Criminal proceedings were ultimately taken recourse to. In either case the question of possession of the land in dispute is involved and it is this possession of the very same plots of land which became the subject matter of the subsequent civil litigation. In both the criminal and civil cases possession of B schedule properties was directly involved as aforesaid.

 

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