Advocate-on-Record Who Filed Petition Liable For Wrong Statement Even If It Was Drafted By Another Advocate : Supreme Court

Under Rule 10, if an AoR is found guilty of misconduct, the Court can order the removal of the AoR's name from the register, either permanently or for a specified period, with reports sent to the Bar Council of India and the relevant State Bar Council.

A bench of Justice Abhay Oka and Justice Augustine George Masih delivered its judgment on issues concerning the code of conduct for Advocates-on-Record (AoRs) and the process of Senior Advocate designation. The case arose from false statements and suppression of material facts made by a Senior Advocate in multiple remission pleas.

The Court outlined the duties of the Advocate-on-Record as follows:

1. When a petition/appeal is not drafted by the Advocate on Record, the Advocate on Record who files it is entirely and wholly responsible to this Court. Therefore, when an Advocate on Record receives a draft of petition/appeal/counter affidavit from any other advocate, it is his duty to go through the case papers and thereafter to carefully go through the petition/appeal/counter affidavit to ascertain whether correct facts have been stated in the draft and whether all relevant documents are annexed to the petition/appeal/counter affidavit.
2. After reading the case papers, if he has any doubt, he must get the doubt clarified either by contacting the client or his local advocate. He is responsible for ensuring that he gets correct instructions so that there is no suppression of facts while filing petitions/appeals/counter affidavits.
3. An Advocate on Record is answerable to this court since he has a unique position under the Supreme Court Rules, 2013. Therefore, when incorrect factors are written in the petition/appeal/counter-affidavit or when material facts or documents are suppressed, the Advocate on Record, cannot shift the entire blame on either the client or his instructing advocates.
4. Therefore, it is his duty to be cautious and careful. His duty is to file proper proceedings and affidavits before this Court and to assist the court in dispensing justice, he must be always fair to the court and effectively assist the court in deciding cases.
5. The duty of Advocate of Record does not end after filing a case or a counter. Even if counsel appointed by him is not present, he must be ready with the case on law and facts and effectively assist the court.
6. It is the obligation of the Advocates on Record not to merely lend their names to petitions/appeals drafted by somebody else. If they do that, the very purpose of making a provision for setting up institution of Advocates on Record will be frustrated.
7. If the advocates on record start behaving irresponsibly and start merely lending their names by filing petitions/appeals/counter affidavits it may directly impact the quality of justice rendered by this court. Therefore, if any advocate on record commits misconduct or is guilty of conduct unbecoming of an advocate of records, action against him as per Rule 10 of Order 4 is warranted.

Background

The Court took up these issues due to false statements and the suppression of material facts made by Senior Advocate Rishi Malhotra in multiple remission pleas.

On September 2, 2024, the Supreme Court noted material misrepresentation in a Special Leave Petition (SLP) seeking premature release, where key facts were suppressed, including a prior judgment restoring the petitioner's sentence of 30 years without remission. The court described this as a case of gross misrepresentation. The Court issued a notice to the Advocate-on-Record (AoR), requiring him to explain his conduct through an affidavit.

The Court questioned the AoR's practice of filing petitions without verifying facts, emphasizing the need for AoRs to interact directly with clients. The Court expressed concern over the growing trend of misrepresentations in remission pleas and sought assistance from SCAORA's President, Vipin Nair.

Senior Advocate Rishi Malhotra and the AoR filed affidavits in the matter regarding the false statements. After noting that the senior and the AoR were blaming each other, the Court decided to lay down guidelines on the conduct of AORs and appointed Senior Advocate Dr. S. Muralidhar as the Amicus Curiae in the case.

The Court expressed concern over recurring misrepresentations and sought the views of the Supreme Court Bar Association (SCBA) on guidelines for AoRs.

Senior Advocate S. Muralidhar suggested amending Supreme Court Rules to define the responsibilities of different categories of lawyers to ensure accuracy in pleadings. He proposed written confirmation letters from clients, including incarcerated ones, to verify petition contents.

Case no. – Petition for Special Leave to Appeal (Crl.) No. 4299/2024

Case Title – Jitender @ Kalla v. State (Govt.) of NCT of Delhi & Anr.