Complaint regarding violation of the Advocates Act, 1961

 

To
The Secretary
Bar Council of West Bengal
Kolkata

Subject:

Complaint regarding alleged violation of the Advocates Act, 1961 and the Bar Council of India Rules by an enrolled Advocate in connection with the operation/management/promotion of a private detective/investigation organisation under the name and style of “WATCH & CATCH – PRIVATE DETECTIVE ASSOCIATE”.

Most Respectfully Showeth:

1. That the present complaint is being preferred in respect of a highly objectionable advertisement/publicity material circulated in the public domain under the name and style of “WATCH & CATCH – PRIVATE DETECTIVE ASSOCIATE”, describing itself as “A GOVT. REGD. PRIVATE DETECTIVE ORGANIZATION” and offering various forms of private investigation and information-gathering services to members of the general public.
2. That the said advertisement prominently offers pre-marital investigation, matrimonial investigation, background verification, verification of prospective bride/groom, investigation into suspected deception, locating persons, collection of information, preparation of investigation reports and assistance in legal matters, thereby holding out the organisation as a commercial private investigation establishment.
3. That the nature and tenor of the advertisement demonstrate that the organisation is not merely rendering incidental legal assistance but is soliciting members of the public to engage its services for private investigation and information-gathering assignments for consideration.
4. That if the person responsible for establishing, operating, managing, controlling or personally conducting the aforesaid activities is an enrolled Advocate and continues to practise as an Advocate, such conduct raises a serious question of professional misconduct and violation of the standards of professional conduct prescribed by the Bar Council of India.
5. That Rule 47, Part VI, Chapter II, Section VII of the Bar Council of India Rules expressly provides that an Advocate shall not personally engage in any business, subject to the limited exception relating to a sleeping partner where the appropriate State Bar Council considers the nature of the business consistent with the dignity of the profession. The Supreme Court has also recognised the applicability and significance of Rule 47 in regulating the professional conduct of Advocates.
6. That the operation of a private detective/investigation establishment, involving investigation assignments, surveillance, collection of information, preparation of reports, background verification and charging members of the public for such services, is prima facie commercial activity/business and cannot ordinarily be characterised as the practice of law merely because certain portions of the advertisement refer to “legal assistance” or “legal consultation”.
7. That an Advocate cannot, merely by describing a commercial investigation establishment as an “Associate”, “Legal Investigation Service” or by adding references to legal assistance, convert a separate commercial activity into the practice of law or thereby avoid the professional restrictions imposed by the Bar Council of India Rules.
8. That Rule 36 of the Bar Council of India Rules prohibits an Advocate from advertising or soliciting work in any manner. The official Bar Council of India material itself records that an Advocate shall not solicit work or advertise in any manner.
9. That the impugned advertisement is not a mere display of the Advocate's name, designation or professional particulars. On the contrary, it is a commercial solicitation of members of the public, inviting them to engage the organisation for investigation services relating to matrimonial matters, prospective marriages, personal relationships, background verification, suspected deception and collection of information.
10. That such publicity, if undertaken by or through an enrolled Advocate, is therefore liable to be examined as an attempt to commercially solicit clients and assignments through a business activity inconsistent with the professional standards applicable to Advocates.
11. That the advertisement further contains the conspicuous representation:

“A GOVT. REGD. PRIVATE DETECTIVE ORGANIZATION”

The exact statutory basis and authenticity of this representation require verification by the competent authority.

12. That the Private Detective Agencies (Regulation) Bill, 2007, which proposed a specific licensing and regulatory framework for private detective agencies, was ultimately withdrawn from the Rajya Sabha on 23 March 2020. Therefore, any claim that an organisation possesses a governmental registration/licence specifically authorising it to conduct private detective operations must be supported by disclosure of the precise statutory authority and licence/registration under which the claim is made.
13. That an ordinary registration of a business entity, proprietorship, company, partnership, trade establishment, GST registration or any other general business registration, if any, cannot by itself be represented as a statutory governmental licence or authorisation to exercise investigative powers or conduct activities which may intrude upon the privacy or other legally protected rights of individuals.
14. That the expressions used in the advertisement, particularly “investigation”, “evidence collection”, “locating persons”, “background verification”, “matrimonial investigation” and “pre-marriage investigation”, warrant scrutiny because private persons and private agencies do not possess the coercive investigative powers vested by law in statutory investigating agencies.
15. That any investigation undertaken by a private individual or agency must necessarily remain within the boundaries of law, including applicable provisions relating to privacy, confidentiality, personal data, trespass, impersonation, unlawful surveillance, unauthorised access to electronic information and other applicable civil and criminal liabilities.
16. That the concern becomes particularly grave where an enrolled Advocate is associated with such an organisation because the public may reasonably perceive the organisation as possessing special legal authority or investigative powers by virtue of the Advocate's professional status, thereby creating a risk of misleading the public and lowering the dignity and standards of the legal profession.
17. That the Advocates Act, 1961 confers disciplinary jurisdiction over professional misconduct, including proceedings under Section 35, while Section 49 empowers the Bar Council of India to frame rules governing professional conduct and the conditions subject to which Advocates may practise.
18. That the present complaint is therefore not based upon the proposition that every private investigation activity in India is per se a criminal offence. Rather, the specific grievance is that an enrolled Advocate cannot, while continuing to hold himself/herself out as a practising Advocate, personally engage in a commercial business which is inconsistent with the professional restrictions applicable to Advocates, and cannot use advertising and solicitation to procure such commercial assignments in a manner prohibited by the BCI Rules.
19. That the conduct complained of, if established upon inquiry, would amount to conduct unbecoming of an Advocate and would have the potential to undermine the dignity, independence and professional standards of the legal profession.
20. That the matter therefore warrants an appropriate preliminary inquiry by the Bar Council to ascertain:

a. whether the person responsible for the organisation is an enrolled Advocate;

b. the State Bar Council in which such person is enrolled;

c. whether the Advocate is presently entitled to practise;

d. whether the Advocate is the proprietor, partner, director, promoter, manager, employee or investigator of the said organisation;

e. whether the Advocate personally undertakes investigation assignments;

f. whether the Advocate receives remuneration or consideration from such assignments;

g. whether the organisation is being operated as a business by the Advocate;

h. whether the impugned advertisement was issued by, authorised by or sponsored by the Advocate;

i. whether clients are being solicited through such advertisement;

j. whether any registration/licence described as “GOVT. REGD. PRIVATE DETECTIVE ORGANIZATION” actually exists; and

k. if so, under what Act, Rules, notification or statutory authority such registration/licence has been granted.

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PRAYER

In the circumstances stated hereinabove, it is most respectfully prayed that this Hon'ble Bar Council may graciously be pleased to:

a) take the present complaint/representation on record;

b) call for a preliminary explanation from the concerned Advocate regarding his/her connection with “WATCH & CATCH – PRIVATE DETECTIVE ASSOCIATE”;

c) ascertain whether the concerned Advocate is personally carrying on, managing, controlling or participating in the business of the said private investigation organisation;

d) examine the conduct in the light of Rule 36 and Rule 47 of the Bar Council of India Rules, and such other applicable provisions as may be attracted;

e) verify the claim appearing in the advertisement that the organisation is a “GOVT. REGD. PRIVATE DETECTIVE ORGANIZATION”, including the alleged registration/licence and the statutory authority under which the same has purportedly been granted;

f) call for the relevant registration documents, licences, business records, advertisements, receipts, invoices and other materials necessary for determining the nature of the activities undertaken by the organisation;

g) if a prima facie case of professional misconduct is found, initiate appropriate proceedings in accordance with Section 35 of the Advocates Act, 1961; and

h) pass such further order or direction as may be deemed fit and proper in the interest of the dignity and purity of the legal profession.

And for this act of kindness, the Complainant as in duty bound shall ever pray.