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(..2..)
Professional Misconduct
Professional Misconduct of An
Advocate
QUESTION BANK
1.
2.
3.
Explain the term “Professional Ethics’ and ‘Professional Misconduct’ with the help
of instances.
Discuss the procedure to be followed by the State Bar Council in dealing with a
complaint against an advocate.
What is professional misconduct? Explain the procedure to be followed in
disciplinary committee of State Bar Council and Bar Council of India in solving
complaint for professional misconduct.
4.
5.
6.
What is professional misconduct and other misconduct? Explain the powers of
disciplinary committee of State Bar Council and Bar Council of India.
Explain the term “Professional and other misconduct”. Who is the authority to
punish for it? Explain its powers and procedure?
Define “Professional Misconduct”. Explain he constitution, powers and procedure
followed by the Disciplinary Committees.
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Short Notes
1. Punishment for professional misconduct.
TABLE OF CONTENT
I. ‘‘Professional or other misconduct’’ meaning-...................................................................16
a. Definition of the term “misconduct”-......................................................................16
b. “Other misconduct”-..................................................................................................17
nature (S. 35 (3))-...........................................................................................................18
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nature (S. 36 (4))-...........................................................................................................21
Committee of Bar Council of India-............................................................................22
1. Formal complaint (Rule 1)-..........................................................................22
2. Appeal-........................................................................................................................24
V. Some landmark Judgments on Professional Misconducts:
Chapter V of the Advocates Act 1961 deals with the ‘professional or other
misconduct’ of Advocate and punishment thereto.
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I. ‘‘Professional or other misconduct’’ meaning-
As per S. 35 (1) of the Advocates Act, 1961,-
where-
(i) on receipt of a complaint or otherwise
(ii) a State Bar Council has reason to believe
(iii) that any advocate on its role has been guilty of professional or other misconduct,
(iv) it shall refer the case for disposal to its disciplinary committee.
Thus, the section provides for punishingan advocate who commits ‘professional or
other misconduct; however, the term ‘professional or other misconduct’ has not been
defined under the Advocate’s Act. However, the Supreme Court and various High Courts
have defined the term ‘professional or other misconduct’ in several cases. We will discuss
some of the definitions as follows-
a. Definition of the term “misconduct”-
In State of Punjab v. Ram Singh1
The Supreme Court observed that the term “misconduct” might involve moral turpitude; it
must be improper or wrong behaviour, unlawful behaviour, wilful in character forbidden
act, a transgression of established and definite rule of action or code of conduct, but not
mere error of judgment, carelessness or negligence in the performance of duty.
The Supreme Court, the term ‘Misconduct’ means ‘improper behaviour, intentional
wrongdoing or deliberate violation of a rule of thtandard of behaviour’.
Thus, from the above discussion of the court, we may say that an advocate is bound
to conduct himself in a manner befitting the high and honourable legal profession. An
advocate is expected to uphold the high traditions of a noble professionof advocacy. If the
Advocate departs from the high standards of the legal profession, he is liable for
professional misconduct.
He must comply with the professional ethics and etiquette laid down by the Bar
Council of India. However, the term “professional and other misconduct” is very wide. It
not only covers professional ethics and etiquette framed by the Bar Council of India (as
discussed in topic I), but it may also cover a much wider range of behaviour that is not up
to the mark of the high standards of the legal profession. Thus, defraudingor cheatingthe
party, failing to file a case after accepting a brief and fees, taking instructions from any
person other than the client, fraudulent or grossly improper conduct in discharging his
duties, engaging in the business of profit-making, threateninglanguage in the court are
1 AIR 1992 SC 2188
2 2004 AIR SCW 2894
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held to misconduct liable for punishment. However, in V.P. Kumaravelu v. The Bar
delinquency does not amount to professional misconduct.
b. “Other misconduct”-
The term usedin S. 35 is notjust “professionalmisconduct”but“othermisconduct.”
These terms are very wide and cover not only professional misconduct but also conduct
that is not up to the mark, even outside the legal profession. The discretion is up to the Bar
Council's disciplinary committee.
Thus, as per S. 24- A of the Advocates Act, a person cannot be admitted as an
advocate on a State roll if convicted of an offence involving moral turpitude.
Hikmat Ali Khan v. Ishwar Prasad Arya4
The Supreme Court held that an advocatewho assaultshisopponentin the Courtroomwith
a knife and is convicted for the offence of attempting to murder is unworthy of remaining
in the legal profession.
The Supreme Court held that an advocate attendinga court hearingwith firearms does not
conduct himself in accordance with the dignity of the legal profession.
Thus, the term “professional or other misconduct” used in S. 35 gives large
discretionary power to the disciplinary committee of the Bar Council to resort against any
behaviour that is not up to the high standards of the legal profession.
II. Role of State Bar Council in punishing guilty advocate-
a. Power of State Bar Council to Punish for professional or other misconduct-
S. 6 (c) of the Advocates Act entrusts the State Bar Council with hearing and
decidingcasesof misconductagainstadvocatesonits rolls. Earlier, theHigh Courts carried
out this function.
S. 35 (1) of the Advocates Act, 1961, provides that-
Where-
(i) on receipt of a complaint or otherwise
(ii) a State Bar Council has reason to believe
(iii) that any advocate in its role has been guilty of professional or other misconduct,
(iv) it shall refer the case for disposal to its disciplinary committee.
b. Composition of Disciplinary Committee-
As per S. 9 (1) of the Advocates Act, a Bar Council shall constitute one or more
3 AIR 1997 Supreme Court 1014
4 AIR 1997 SC 864
5 AIR 1996 SC 98
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disciplinary committees, each of which shall consist of three persons, of whom two shall
be persons elected by the Council from amongst its members and the other shall be the
person co-opted by the councilfrom amongst advocateswho has for at leastten years been
advocates on a State roll and who is not a member of the Council, and the senior-most
advocate amongst the members of a disciplinary committee shall be the Chairman thereof.
c. Power to withdraw proceeding and transfer it to another committee (S. 35 (1-A)-
The State Bar Council may, either of its own motion or on an application made to it
by any personinterested,withdraw a proceedingpendingbeforeits disciplinarycommittee
and direct the inquiry to be made by any other disciplinary committee of that State Bar
Council.
d. Procedure to be followed by the Committee (S. 35 (2))-
When a matter is referredto the disciplinarycommitteeforinquiry, the Disciplinary
Committee of theState Bar Councilshall fixa datefor the hearingof the case.It shallcause
notice thereof to be given to the advocate concerned and the State's Advocate General.
e. Disciplinary Committee of the State Bar Council can pass a final order of the
following nature (S. 35 (3))-
The disciplinary committee, after givingthe advocateconcernedand the Advocate–
General an opportunity to be heard, may make any of the following orders: namely-
(a) Dismiss the complaint or where the proceedings were initiated at the instance of
the State Bar Council, direct that the proceeding be filed;
(b) Reprimand the advocate;
The Supreme Court punished the Advocate with a reprimand for professional
misconductcommitted by keepingRs. 1500with himselfin connectionwiththe settlement
in the execution proceeding.
(c) Suspend the advocate from practice for such period as it may deem fit;
The advocate's purchase of his client's property and sale of it at a high rate was held to be
professional misconduct, and he was suspended from practice for one year.
(d) Remove the advocate's name from the state roll of advocates.
Supreme Court ordered to remove Advocate's name from State Roll for attempting to
murder his opponent.
6 AIR 1997 Supreme Court 1338
7 AIR 1988 Supreme Court 283
8 AIR 1997 Supreme Court 864
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Where an advocate is suspendedfrom practice, he shall, duringthe period of
suspension, be debarred from practising in any court or before any authority or person in
India (S. 35 (3)).
Where an order of reprimandingor suspendingan advocate is made, a record of the
punishment shall be entered against his name, and the certificate of enrollment be recalled
(S. 41).
f. Procedural powers (S. 42 (1))-
The Disciplinary Committee of a Bar Council shall have the same powers as are
(c) receiving evidence on affidavits;
(f) any other matter which may be prescribed.
Provided that no such disciplinary committee shall have the right to require the
attendance of—
to which such court is subordinate;
Government.
g. Proceedings are deemed to be judicial proceedings (S. 42 (2))-
All proceedings before a disciplinary committee of a Bar Council shall be deemed
to be judicial proceedings.
h. Service of summons through Court (S. 42 (3)-
To exercise any of the powers conferred by sub-section (1), a disciplinary
committee may send to any civil court in the territories to which this Act extends any
summons or other process for the attendance of a witness or the production of a document
required by the committee or any commission which it desires to issue, and the civil court
shall cause such a process to be served or such commission to be issued, as the case may
be, and may enforce any such process as if it were a process for attendance or production
before itself.
i. Proceeding in the absence of Chairman or member (S. 42 (4))-
Notwithstanding the absence of the Chairman or any member of a disciplinary
committee on the date fixed for the hearing of a case before it, the disciplinary committee
may, if it so thinks fit, hold or continue the proceedings on the date so fixed and no such
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proceedingsandnoordermade by thedisciplinarycommitteeinanysuchproceedingsshall
be invalidmerely by reasonof the absenceof the Chairman or member thereofon any such
date: Provided that no final orders shall be made in any proceeding unless the Chairman
and other members of the disciplinary committee are present.
j. Opinion of Chairman or Vice-Chairman of Bar Council as to final order (S. 42
(5))-
Where nofinal ordercanbe made in anyproceedingsinaccordancewiththeopinion
of the Chairman and the members of a disciplinary committee, either for want of majority
opinionamongst themselvesor otherwise,the case, with theiropinionthereon,shall be laid
before the Chairman of the Bar Council concerned or (if the Chairman of the Bar Council
is acting as the Chairman or a member of the disciplinary committee), before the Vice-
Chairman of the Bar Council, and the said Chairman or the Vice Chairman of the Bar
Council, as the case may be, after such hearing as he thinks fit, shall deliver his opinion
and the final order of the disciplinary committee shall follow such opinion.
k. Order as to cost of proceeding and Execution of an order (S. 43)-
The DisciplinaryCommittee may make suchorderas to thecostsof anyproceedings
before it as it may deem fit, and any such order shall be executable as if it were an order of
the High Court (in case passed by State Bar Council) or the Supreme Court (in case passed
by Bar Council of India).
l. Continuous proceeding (S. 36 (A))-
Whenever a Disciplinary Committee (either State or Indian) ceases to exercise
jurisdiction and is succeeded by another Committee, the succeeding Committee may
continue the proceeding from the stage at which it was left.
m. Proceeding is to be concluded within one year (S. 36-B)-
The proceeding by the State Disciplinary Committee shall be concluded within a
period of one year from the date of the receipt of the complaint or the date of intonation of
the proceedings at the instance of the State Bar Council, failing which such proceedings
shall stand transferred to the Bar Council of India.
The Andhra Pradesh High Court observed that allegations of misconduct against an
advocate should be disposed of expeditiously within one year so that either the cloud cast
on the particular advocate is cleared as soon as possible or the noble profession is kept
clear of such members.
III. Role of the Bar Council of India in punishing guilty advocates-
a. Power of State Bar Council to Punish for professional or other misconduct-
9 AIR 1983 A.P. 271
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S. 6 (c) of the Advocates Act entrusts the State Bar Council to entertain and decide
cases of misconduct against advocates on its rolls. Earlier, the High Courts used to carry
this function.
S. 36 (1) of the Advocates Act, 1961, provides that-
Where-
(i) on receipt of a complaint or otherwise
(ii) the Bar Council of India has reason to believe
(iii) that any advocate whose name is not entered on any State roll has been guilty of
professional or other misconduct,
(iv) it shall refer the case for disposal to its disciplinary committee.
Thus, S. 36 (1) and S. 35 (1) read with similar verbatim and with the difference that
an advocate against whom action is sought need not be on the roll of any State Bar.
b. Composition of Disciplinary Committee-
Same as discussed under S.9 (1) earlier.
c. Procedure to be followed by the Committee (S. 36 (2))-
The Disciplinary Committee of the Bar Council of India may, either of its own
motion or on a report by any State Bar Council or on an application made to it by any
personinterested,withdrawfor inquirybeforeitselfanyproceedingsfordisciplinaryaction
against any advocate pendingbeforethe Disciplinary Committee of any State Bar Council
and dispose of the same.
In disposing of any case, the Disciplinary Committee of the Bar Council of India
shall observe, so far as may be, the procedure laid down in S. 35, the references to the
Advocate-General in that section beingconstrued as references to the Attorney General of
India (S. 36 (3).
e. Disciplinary Committee of the State Bar Council can pass a final order of the
following nature (S. 36 (4))-
In disposingof any proceedings under this section, the Disciplinary Committee of
the Bar Council of India may make any order that the Disciplinary Committee of a State
Bar Council can make under S. 35 (3).
Thus, the Disciplinary Committee of the Bar Council of India can pass the same
orders as the Disciplinary Committee of the State Bar Council under S. 35 (3).
f. Applicability of S. 36-A and S. 36-B-
Both sections 36-A and S. 36-B apply to the Disciplinary Committee of the Bar
Council of India.
g. Procedural powers (S. 42)-
The provisions of S. 42 are equally applicable to both Disciplinary committees.
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h. Order as to cost of proceeding and Execution of an order (S. 43)-
The provisions of S. 43 are equally applicable to both Disciplinary committees.
i. Complaint against advocates and procedure to be followed by Disciplinary
Committee of Bar Council of India-
In addition to the above-discussed sections, the Bar Council of India has framed
rules in detail. Chapter I Part VII deals with the rules relating to a complaint against
advocatesandprocedurestobefollowedby the DisciplinaryCommittee of the Bar Council
of States or of India
The relevant rules are as follows-
1. Formal complaint (Rule 1)-
A complaint against an advocate shall be in the form of a petition duly signed and
verified as required under the Code of Civil Procedure.
If the complaint is not in English, a translation into English must be filed along with it.
Every complaint shall be accompanied by the fees prescribed in the rules framed by
the Bar Council of India.
If the complaint is found in the order, it shall be registered and placed before the
Bar Council for such order as it may deem fit to pass.
2. Ask for further and better particulars (Rule 2)-
Before referring a complaint under S. 35 to the disciplinary committee, the Bar
Council may require a complainant to furnish further and better particulars within time to
be fixed by it. It may also call for comments from the advocate who complained against it.
3. Notice to Advocate (Rule 3)-
After a complaint has been referred to a disciplinary committee by the Bar Council,
the Registrar shall expeditiously send a notice to the advocate concerned requiringhim to
show cause within a specified date on the complaint made against him and to submit the
statement of defence, documents and affidavits in support of such defence.
4. Fixing date, time and place of inquiry (Rule 4)-
The Chairman of the disciplinary committee shall fix the date, hour and place of the
enquiry, which shall not ordinarily be later than 30 days from the receipt of the reference.
The Registrar is required to give notice of such date, hour and place to concerned persons.
5. Manner of services of notice (Rule 5)-
The notices referred to above shall, subject to necessary modification, be in the
Forms prescribed. Such notices are required to be sent to the advocates appearingfor the
parties.
6. Parties may appear personally or through an advocate
(Rule 6)-
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The parties can appear in person or by an advocate who should file a vakalatnama
giving the name of the Bar Council in which he is enrolled, his residential address,
telephone number and address for service of notices.
7. Ex parte proceeding (Rule 7)-
If an enquiry on a complaint is received, either the complainant or the respondent
does not appear before the disciplinarycommittee despite service of notice, the committee
may proceed ex parte or direct fresh notice to be served. Such ex parte order may be set
aside on sufficient cause.
8. Right of Attorney General, etc., to be heard (Rule 8)-
The disciplinary committee shall hear the Attorney-General, the Additional
Solicitor-General of India, or the Advocate-General, as the case may be their advocate and
parties or their advocate if they desire to be heard and determine the matter on documents
and affidavit. If necessary, parties may be cross-examined.
9. Evidence is to be recorded in English (Rule 9)-
Evidence given before the disciplinary committee shall be recorded preferably in
English by any committee member or any other person authorised by the committee. The
evidence so recordedshall be signed by the Chairman or, in his absence, by any committee
member.
10. Record of day-to-day hearing (Rule 10)-
Every disciplinarycommitteeis to make a recordof its day-to-dayproceedings.The
registrar of the disciplinary committee shall maintain a case diary.
11. Majority opinion shall prevail (Rule 14)-
The findings of the majority of the disciplinary committee members shall be the
findings of the committee.
the disciplinary committee is essentially quasi-criminal in nature, and therefore, the
standard of proof for this purpose is the same as that required for convictingan accused in
a criminal case.
IV. Remedies against the order of punishment-
Advocate Act provides the following remedies to the Advocate found guilty by the
Disciplinary Committee of misconduct-
1. Review-
The Disciplinary Committee of a Bar Council may, on its own motion or otherwise,
review any order within 60 days of the date of the order passed by it under this chapter ( S.
44). However, no such order of review of the disciplinary committee of the State Bar
10 AIR 1976 SC 373
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Council shall have effect unless it has been approved by the Bar Council of India.
The Bar Council of India or any of its committees, other than its disciplinary
committee, may, on its own motion or otherwise, review any order passed by it under the
Advocates Act (S. 48-AA) within 60 days of the date of that order.
In Chapter II of Part VII, the Bar Council of India has laid down detailed rules to
review.
2. Appeal-
In case of an order of punishment by the disciplinary committee of the State Bar
Council, an appeal may be preferred to the Bar Council of India under S. 37 of the
Advocates Act.
In ChapterI of Part VII, theBar Councilof India has frameddetailedrulesregarding
the proceduretobeobservedin caseof appealto it from the orderof the State Bar Council's
disciplinary committee.
Appeal to the Supreme Court (S. 38)-
Any person aggrieved by an order made by the disciplinary committee of the Bar
Council of India may, within 60 days of the date on which the order is communicated to
him, prefer an appeal to the Supreme Court. The Supreme Court may pass such an order,
includingthe order varyingthe punishment awarded by the Disciplinary Committee of the
Bar Council of India.
V. Some landmark Judgments on Professional Misconducts:
Facts of the Case: The appellant, V.C. Rangadurai, was an advocate. Two complainants,
a 70-year-old deaf man named Devasenapathy and an elderly woman named Smt. D.
Kamalammal, entrusted the appellant with two promissory notes for ₹15,000 and ₹5,000
for filing recovery suits against their landlady. They paid the advocate his fees and
expenses for filing the suits.
The advocate allegedly did not file the suits in time and misled the complainants by
falsely representing that the suits had been filed and were pending, and even provided
fabricated dates of hearings.
Upon realizing the deception, the complainants filed a complaint of professional
misconduct against the advocate with the State Bar Council of Tamil Nadu.
The Disciplinary Committee of the State Bar Council foundthe advocateguilty of gross
professional misconduct and debarred him from practice for six years.
On appeal, the Bar Council of India upheld the finding of misconduct but reduced the
period of suspension from practice to one year.
11
(1979) 1 SCC 308, AIR 1979 SC 281
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The advocate then appealed to the Supreme Court.
The Supreme Court, while dismissingtheappealfiled bythe advocate,upheldthefinding
of professional misconduct and the period of suspension of one year imposed by the Bar
Council of India. However, the Court made the following observations and directions
regarding the punishment:
Affirmation of Misconduct: The Court agreed with the findings of the Bar Councils that
the advocate was guilty of gross professional misconduct for deceiving his clients,
misappropriating their money by not filing the suits despite receiving fees, and making
false representations. The Court emphasized the fiduciary nature of the relationship
between a lawyer and a client, requiringthe highest standards of integrity and good faith.
Facts: The Supreme Court Bar Association filed a writ petition challengingthe Supreme
Court's power to suspendanadvocatefrom practiceinexerciseof its contemptjurisdiction,
as done in In Re: Vinay Chandra Mishra. The Bar Association argued that the Advocates
Act, 1961, exclusively vests the power to take disciplinary action against advocates,
including suspension, with the Bar Councils. They sought a declaration affirming this
exclusive jurisdiction.
Order of the Supreme Court: The Supreme Court overruled its earlier decision in In Re:
Vinay Chandra Mishra to the extent it held that the Court could suspend an advocate's
license in contempt proceedings. The Court held that the power to punish for contempt is
distinctfrom disciplinaryjurisdiction,whichexclusivelyvestswiththe Bar Councilsunder
the Advocates Act, 1961. While the Supreme Court retains the power to regulate the
conduct of advocates before it and can debar them from appearing in specific cases of
contempt, it cannot suspend their license to practice generally. The punishment for
contempt under Article 129 is limited to imprisonment and/or fine. The Court suggested
that cases of contemptuous conduct also amounting to professional misconduct could be
referred to the relevant Bar Council for disciplinary action.
Facts of the case- D.S. Dalal, acting as an advocate, assisted a client in securing a loan
from the State Bank of India. To facilitate the loan, Dalal submitted forged property
documents as collateral. These documents falsely represented ownership of a property to
satisfy the bank’s requirements. The forgery was later discovered by the bank during
verification, revealingthat the property in question either did not exist or was fraudulently
12
(1998) 4 SCC 409, AIR 1998 SC 1895
1993 AIR 1608, 1993 SCR (2) 230
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represented. The State Bank of India filed a complaint against Dalal for professional
misconduct under the Advocates Act, 1963.
The Supreme Court Observed- The Court emphasized that advocates are entrusted with
upholding the rule of law and must act with integrity, honesty, and fairness. Forging
documents to deceive a financial institution constituteda grave violation of the fiduciary
duty an advocate owes to the court, clients, and society.
Legal Provisions: The Court invoked Section 35 of the Advocates Act, 1963, which
defines "professional misconduct" and empowers the BCI to punish advocates for such
acts.
Facts: Advocates called for strikes, disrupting court proceedings.
Order: The Supreme Court declared strikes by lawyers illegal and a form of professional
misconduct. It clarified that advocates have no right to strike as it undermines the
administration of justice.
Facts: An advocate advertised his services in newspapers, violating Bar Council rules.
Order: The Supreme Court held that advertising by advocates is unprofessional and
amounts to misconduct under Section 49(1)(c)of the Act. Restrictions on solicitation were
upheld to preserve the nobility of the profession.
Facts: The advocate challenged the Bar Council’s authority to suspend him.
Order: The Supreme Court upheld the Bar Council’s exclusive disciplinary powers under
Sections 35 and 36 of the Act, affirming its statutory autonomy to regulate the profession.
Facts: The advocate forged a client’s signature on settlement documents.
Order: The Supreme Court held forgery as serious misconduct, leadingto the advocate’s
removal from the rolls. The court emphasized that dishonesty erodes public trust in the
legal system.
Facts: An advocate sexually harassed a client during a legal consultation.
Order: The Madras High Court ruled that sexual harassment violates professional ethics
14
(AIR 2003 SC 739)
15
(AIR 1975 SC 2092)
(AIR 1968 SC 888)
(AIR 1998 SC 283)
(AIR 2017 Mad 132)
16
17
18
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under Section 35, suspendingthe advocate. The case expanded the scope of misconduct to
include gender-based offences.
Facts: An advocate was punished for contempt due to unruly courtroom behaviour.
Order: The Supreme Court clarified that while courts can punish contempt, disciplinary
jurisdiction lies primarily with the Bar Council under the Advocates Act. This case
demarcated the overlap between contempt and misconduct proceedings.
*****
19
(AIR 1998 SC 1895)