RASHEED A. RAZVI, J.-- Instant matter arises out of proceedings under Section 12(2), CPC filed against judgment/decree dated 9.11.1995 in suit No. 549/1995 on the grounds of fraud and misrepresentation alleged against the present respondents.
2. In Suit No. 549/95 (Altaf Hussain v. Muhammad Ahsan and .Others) Mr. Raja Mir Muhammad Khan, Advocate had appeared for the plaintiff. This suit was decreed on the hash of a written statement filed on behalf of defendants through their counsel Mr. 'Saifullah Khan, Advocate, wherein the execution of agreement to sell an immovable property was admitted alongwith the receipt of consideration. It is this order which has been challenged in aforesaid proceedings. During hearing of the instant Petition under Section 12(2), CPC it was alleged that Mr. Saifullah Khan, Advocate, who appeared for the defendants in that suit was not an enrolled Advocate of the High Court and, therefore, vide order dated 13.12.1998 he was summned and was examined on 16.12.1998 whereafter Mr. Raja Mir Muhammad Khan, Advocate, was directed to explain his conduct under the following circumstances: "................... In pursuance of the last order, Mr. Zamir Ahmed, Advocate, has produced Mr. Saifullah, Advocate son of Abdul Raced, who was examined by this Court on oath. He has stated that the written statement, Vakalatnama and other documents tiled by him were provided to him by respondent No. 2, Fawwad Rehman and Mr. Raja Mir Muhammad Khan, Advocate, who at the relevant time was appearing for the plaintiff in that suit. Tentatively, it appears that may be due to some ulterior motive on the part of this Advocate, at the time of the earlier suit, these pleadings. Wikalatnama and other documents were delivered by them to Mr. Sarfaraz, Advocate. There was no reason apparent for this respondent and Mr. Raja Mir Muhammad Khan, Advocate to deliver these documents. Initially, I was of the view that this matter being "a case of misconduct, should be referred to the Bar Council. But, prior to passing such order, I would like to give one opportunity to Mr. Raja Mir Muhammad Khan, Advocate to explain his conduct in Suit No. 549/95. Office is directed to issue notice to him for the next date...."
(Extract from the order dated 16.12.1998)
3. On 7.9.1999, after hearing all concerned parties, it was found that there is one question which requires determination i.e. Whether two advocates, having one office, could appear for two different' parties who maintain adverse and conflicting interest. Consequently, notices were issued to the Sindh Bar Council, Pakistan Bar Council as well as to the Advocate General Sindh. Pursuant to the said notices, Mr. Mirza Adil Mustafa Baig, Advocate and Member, Sindh Bar Council and Mr. Arif Hussain Khilji, Advocate Supreme Court and Member, Pakistan Bar Council, have appeared and have rendered their best possible assistance to this Court. However, it is regrettable to note that none has appeared on behalf of the Advocate General Sindh, despite insurance of several reminders. It is to be noted that the Advocate General Sindh, by virtue of his office is also Chairman of the Sindh Bar Council, one of the inherent duties of whose office is to discipline the advocates. In addition to these Members of the Bar Councils, I have also heard Mr. Muhammad Humayun, Advocate who is facing these allegations and on the last date of hearing Mr. Usman Ghani Rashid, who had appeared for Mr. Raja Mir Muhammad, Advocate.
4. Mr. Adil Mustafa Baig, Advocate has candidly admitted that there is no specific rule in the Cannons of Professional Conduct and 'Etiquette of Advocate, as provided in the Legal Practitioners and Bar Council Rules, 1976 (hereinafter referred to as 'the Rules'). He went on to suggest that there is no provision in law prohibiting two partners of one company to appear in a legal proceedings against each other. However, he has further suggested that it is high time that the Court should explain the scope of term 'conflicting interest' as mentioned in Rule 148 of the Rules, 1976. He has also referred to the two cases from the. Indian jurisdiction, namely, Sri A. Guruhasappa, Advocate (AIR 1964 Andhra Pradesh 261) and Veerappa Chattiar and others v. P. G. Sundaresa Sastrigail (AIR 1925 Madras 1201).
Mr. Aril Hussain Khilji, learned Member, Pakistan Bar Council, has supported the submissions of the representative of Sindh Bar Council and contended that at present there is no prohibition for two advocates to appear for two different parties, maintaining conflicting interest, even if they are sharing one roof. However, on the moral plane, it was suggested that one Advocate who enjoys the same premises should not accept the brief of any party fur which another advocate sharing the same office predises has' earlier accepted brief for the other side. Mr. Humayun has also relied upon Rules 134 and 148 of the Rules 1976 and contended that the present circumstances of the case falls within the definition of professional misconduct.
5. In the case of Veerappa Chettar (supra), the question which was involved was interpretation of Rule 277 of the Madras High Court Rules. The said rule, to. Some extent, is similar to rule 146 of the Rules, 1976 which provides that an Advocate shall not accept employment adverse to a client or former client in a matter in which he has obtained confidential information by reason of his employment by such client. The District Munsif directed the two pleaders not to appear for defendants which order was set aside by a Division Bench of Madras High Court for different reasons not relevant in the back drop of this case. However, it was observed that "Client should have the fullest confidence in their legal advisors and should not be deterred or hampered in disclosing the strength and weakness of their cases by the fear that their instructions might at some future time be used against them by their legal advisors. It is the duty of legal practitioners to avoid even the suspicion that they might possibly use information which they received in their professional capacity against the clients from whom they received them " I am also of the same view and would like to add that {the confidence referred in the rule laid down by the Division Bench of the Madras High Court cannot be achieved where two advocates appearing for two different parties having conflicting interest share the same premises or the same law firm. In such circumstances, confidentiality of information given by the clients cannot he guaranteed.
"Proper professional conduct is not a mere matter of compliance with technical rules. It is one to which every one who aspires to be called a gentleman should have an instinctive appreciation ........... It is do doubt true that while in a case of professional misconduct, it may he necessary to establish breach of confidence or some act which would amount to grossly improper conduct of an advocate in the discharge of his professional duty, any conduct which may not necessarily amount to that but which is deemed to be improper, suspicious or embrassing and does not agree with the highest standards of professional morality of ethics, cannot be countenanced.
Before proceeding further, it would be advantageous if the relevant miles namely Rules 134, 147 and 148 are reproduced which read' as follows:- '134. It is the duty of every Advocate to uphold at all fillies the dignity and high standing of his profession, as well as his own dignity and high standing as a member there.
135 to 146 Not Relevant
147. An Advocate shall not accept professional employment without first disclosing, his relation. If any, with the adverse party, and his interest"- if any, in the subject-matter of such employment.
148. An advocate shall not represent conflicting interests
7. It was argued by Mr. Raja Mir Muhammad, advocate that in the instant case Mr. Saifullah Khan, Advocate was neither his junior nor partner nor was sharing the same office premises. However, on his examination, it was stated by Mr. Saifullah Khan, Advocate that he was not paid any professional fee by the defendants of Suit No. 549/1995 and that the Vakalatnama and written statement of the defendants weregiven to him by Mr. Raja Mir Muhammad, Advocate and defendant No. 2. Fawadur Rehman. He has identified those documents during his examination by this -Court. Respondent No. 2, Fawadur Rehman was also examined wherein he admitted that after getting the written statement the defendant prepared, he brought the same to Mr. Raja Mr. Raja Mir Muhammad, Who declined to file the same as he was representing the plaintiff; that he suggested 3/4 names of the advocates including the name of Mr. Saifullah Khan, Advocate whereafter Mr. Saifullah Khan, Advocate, was engaged to represent the defendants in Suit No. 5491995. However, it has been alleged that both these advocates were sitting in one office. At a later stage, it was also alleged that Mr. Saifullah Khan was junior to Mr. Raja Mir Muhammad but no material, warranting punishment for professional misconduct was brought on record. This is the case where defendants who were initially resident of Rawalpindi migrated to U.S.A. And as alleged by the petitioner, the written statement was obtained by misrepresentation and by forging the same. However, I would not like to go into this matter in detail for the present as it may prejudice the case of any of the parties at the final stage. But, I am constrained by the circumstances of the case to make this observation that it was a case of injustice and real hardship for the above petitioners/defendants.
8. There is no specific rule describing conduct of partners of the same law firm, or to advocates sharing the same office, but it is the high time that there should be such rules governing the conduct of two or more advocates having the same office or acting as partners of a law firm.
According to Rule 134 of the Rules 1976, it is the duty of every Advocate to uphold the dignity and high standing of his profession as well as his or her own dignity and high standing as a member of the profession. At the same time as advocate is required not to accept professional employment without first disclosing the relations, if any, with the adverse party or his interest, if any, in the subject-matter of such employment. In the instant case both Mr. Raja Mir Muhammad as well as Mr. Saifuallh Khan were required to inform their clients about their relationship, if any. A client who comes to any advocate for engagement of his service is not aware of the relationship of his advocate with the other party or with the advocate appearing for the adverse party. It is the duty of the earlier to inform his client about such relationship in order to maintaining the confidence of his client. In Rule 148 an..Advocate' has been used which may restrict its application to a situation where more than one advocate is involved. At this stage, I would like to refer to the observations of a Full Behch of Patna High Court in the matter of A, a MUKHTAR (AIR 1946 Patna 357), which read as follows: "The relationship between a lawyer and his client is one that demands the utmost good faith on the part of the lawyer. The ignorance of clients, their inability to he present on every occasion when money is paid or received on their behalf, and the general reputation of members of the profession all required that a person who derogates from the high standard demanded of a legal practitioner must not be permitted to be in a position where he can harm the interest of his clients, and the reputation of the profession to which he belongs, and, at the same time, the reputation of the Court tor the administration of justice.
Lawyers are officers of the Court, and their misconduct cannot but affect that trust which litigants are entitled to place in the conduct of legal proceedings."
The need for trustful and confidential relationship between counsel and his client was also felt recently by a Division Be such of this Court in Raza Hassan and others v. Muhammad Khan and others (1999 CLC 1057). In that case plaintiff was an Advocate who had also represented the defendant ",/st. Sherbano in a matter pertaining to her property. Reference was made to Rules 145 and 150 of the Cannones oi! Etiquette. It was held, inter alia, by the division bench that "The obligation on of a counsel with respect to his client are in no manner less one than th at of a trustee towards the beneficiaries of a trust or a guardian towards a minor ward." It would be beneficial if some quotes from the case of Raza Hussain (ibid) are reproduced in extenso which are as follows. ......... The relationship between a counsel and client is one of a very high degree of confidence. Even statute businessm en and highly educated executives almost blindly rely upon the op pion of their Advocates in matters entailing legal implications...
24. Keeping in view the delicate nature of a counsel-client relationship, law and the conventions and attiquettes professional ethics require Advocates to be extremely careful in upholding the confidence reposed in them. Such cannons of conduct are based on high principles of public policy and have also been adopted by the Pakistan Bar Council' in the form of statutory rules framed under its rule-making power. Rule 145 requires that an Advocate shall not acquire an interest adverse to a client in the property or interest involved in the case. Rule 150 stipulates that an Advocate shall not commingle the property of a client with his own...
25. Before parting with this judgment we are constrained to observe, which a great deal of anguish, that the conduct of the deceased plaintiff was not keeping in view with the high standards of professional ethics and code of conduct that members of the Bar are expected to observe, and must be disapproved. Such dealings might erode public confidence in the legal professional itself, irrespective of other factors.... It has been strenuously contended by both the learned members appearing for the Bar Council that the present alleged conduct of Mr. Raja Mir Muhammad does not amount to misconduct and therefore, a show-cause notice issued by this Court be required.
Indeed, at present there is no prohibition for accepting a brief by the advocates sharing the same roof or premises. At the same time, there is evidence of respondent No. 2 Fawadur Rehman as against the allegations of advocate Mr. Saifullha Khan who in my tentative view, hag deposed to save his skin and attempted to involve Mr. Raja Mir Muhammad. This being the situation, with a strict warning to Mr. Raja Mir Muhammad to be careful in future, I hereby recall show-cause notice issued miller to him. However, at the same time it is desired that the Sindh Bar Council and Pakistan Bar Council may make serious and genuine efforts to update the Cannons of Professional Conduct and Etiquette of Advocates and to bring within its scope the conduct of advocates as narrated herein above. It should be resolved at earliest by the Bar Bodies whether two or more advocates sharing same office or premises can appear for two different parties having conflicting interest? It is further desired that the observations of the learned Judges as noted above should be kept in view during deliberations at the level of the Bar Councils. Registrar of this Court is directed to forward copies of this order to both Bar Councils as well as to the Advocate General Sindh and Attorney General of Pakistan. M/s. Mirza Adil Mustafa Baig and Arif Hussain Khilji, advocates, are also required to inform their respective Bar Councils about the instant order.
Before parting with the order, I would also like to record my appreciation for the services of the learned member of the Bar Councils, who, on a short notice, appeared and rendered their valuable assistance. I would also like to observe at all the comments made hereinabove are tentative in nature and shall in no manner 'prejudice any of the party involved in the petition u/S. 1.2(2), .CPC.
Above question of professional misconduct was decided on 28.9.1999 through a short order. These are the reasonings.