P.D. Khandekar, an advocate, and A.N. Agavane were held guilty of professional misconduct by the Disciplinary Committee of the Bar Council of India (order dated April 23, 1976, in D.C. Appeal No. 11 of 1975) on two counts of giving improper legal advice — drawing an affidavit reciting a Hindu marriage between Potdar and Smt. Dhavale whose divorces were not legal, and drawing an affidavit substituting for a registered gift deed by Smt. Sonubai — and the appellant was suspended from practice for four months. Allowing the appeal in part, the Supreme Court (Sen, J.) held: (i) in an appeal under s. 38 of the Advocates Act, 1961, the Court will not as a general rule interfere with concurrent findings of the Disciplinary Committees unless based on no evidence or mere conjecture and surmise; disciplinary findings require proof higher than in civil suits but short of criminal proof — a convincing preponderance of evidence; (ii) the test is whether the advocate has done something reasonably regarded as disgraceful or dishonourable by his professional brethren, rendering him unworthy to remain in the profession; (iii) charges of professional misconduct must be clearly proved and cannot be inferred from mere suspicion, error of judgment or indiscretion; (iv) improper legal advice may amount to professional misconduct, whereas wrong legal advice may not; mere negligence unaccompanied by moral delinquency is not professional misconduct; an advocate must act with utmost good faith, standing in loco parentis to the litigant. On the evidence the charges failed: the executants were bound by the recitals of the marriage affidavit and the complainants' oral evidence did not rebut the presumption; there was no real evidence connecting the appellant with the gift affidavit, the aged deponent being unable to identify him. The order of the Disciplinary Committee was set aside and proceedings under s. 35(1) dropped, with an expression of hope. The Court further observed (obiter) on the menace of touting prohibited by Rule 36 of the Chapter II Part VI Rules, deprecated the complainant association's tout-based work procurement, and urged the Bar Councils to frame training and welfare schemes for junior advocates under sub-ss. (3) of ss. 6 and 7.
