Explaining the Professional Misconduct in legal profession

Lawyering is such a graceful and honourable profession that common citizens expects any advocate to be serious in his/her work. The law expects that Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity, honesty and integrity of the profession.[1]

With a view to maintain professional ethics among advocates, law provides punishment for those advocates who breach the common rule of professional ethics. So when a person from legal profession especially advocates do any improper conduct willfully, that is called “professional misconduct.” It disqualifies that advocate to continue with legal profession.

DEFINITIONS OF MISCONDUCT

Misconduct has not been defined in the Advocates Act, 1961. But P. Ramanatha Aiyar’s the Law Lexicon, Reprint Edition 1987 at p.821 `misconduct’ defines thus[2]:-

“Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite.

Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.”

The expression professional misconduct was attempted to be defined by Darling J. in A Solicitor ex p the Law Society, in re [1912 (1) KB 302)[3]in the following terms:

If it is shown that an advocate in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dis-honourable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct.

In RD Saxena vs. Balram Prasad Sharma [2000 (7) SCC 264] this Court has quoted the above definition rendered by Darling J., which was subsequently approved by the Privy Council in George Frier Grahame vs. Attorney General (AIR 1936 PC 224) and then observed thus:

Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section uses the expression misconduct, professional or otherwise. The word misconduct is a relative term. It has to be considered with reference to the subject matter and the context wherein such term occurs. It literally means wrong conduct or improper conduct.[4]

Thus, misconduct may involve-[5]

• moral turpitude, it must be improper or wrong behavior;
• unlawful behavior, willful 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 performance of the duty;

Its ambit has to be construed with reference to the subject matter and the context.[6]

ROLE OF BAR COUNCIL OF INDIA

Advocates act, 1973 gives the wide power to bar council of India to deal with the matter of professional conduct.

The functions of the Bar Council of India are inter alia to lay down standards of professional conduct and etiquette, to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of State Bar Councils, to safeguard the rights, privileges and interests of advocates and to exercise general supervision and control over State Bar Councils Disciplinary committees are constituted by each Bar Council.[7]

PROVISION FOR THE DISCIPLINARY PROCEEDING AGAINST ADVOCATE UNDER ADVOCATES ACT AND BAR COUNCIL OF INDIA RULES

PROVISIONS UNDER ADVOCATES ACT, 1961

Procedure of punishment, inquiry, appeal, proceeding for professional misconduct in legal profession is provided in chapter V of advocates Act, 1961. Some of main provisions are hereunder-

• PROCEEDING TO HEAR THE COMPLAINT- (SECTION 35, 36B, 41, 42)-  Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll, has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

The expression “reason to believe” is employed in section 35 of the Act only for the limited purpose of using it as a filter for excluding frivolous complainants against advocate.[8]

The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely: ― 

• dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
• reprimand the advocate; 
• suspend the advocate from practice for such period as it may deem fit; 
• remove the name of the advocate from the State roll of advocates.

When an order is made reprimanding or suspending an advocate, a record of the punishment shall be entered against his name-

• in the case of an advocate whose name is entered in a State roll, in that roll;
• and where any order is made removing an advocate from practice, his name shall be struck off the State roll; 
• Where any advocate is suspended or removed from practice, the certificate granted to him in respect of his enrolment shall be recalled. (section 41)

In each case the proceedings shall be concluded within a period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council. (section 36B)

Where an advocate is suspended from practice, he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India.

Powers of disciplinary committee (section 42)- The disciplinary committee of a Bar Council shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, in respect of the following matters, namely: ―

• summoning and enforcing the attendance of any person and examining him on oath;
• requiring discovery and production of any documents; 
• receiving evidence on affidavits; 
• requisitioning any public record or copies thereof from any court or office; 
• issuing commissions for the examination of witnesses or documents; 
• any other matter which may be prescribed:                                                            

However, no such disciplinary committee shall have the right to require the attendance of—

• any presiding officer of a court except with the previous sanction of the High Court to which such court is subordinate; 
• any officer of a revenue court except with the previous sanction of the State Government. 

• APPEAL (SECTION 37, 38)- An advocate aggrieved by the decision of state bar council, may prefer an appeal to Bar council of India (section 37) within sixty days of the date of the communication of the order to him.

And If any advocate is also not satisfied with the decision of bar council of India, s/he can appeal in Supreme court (section 38) against that decision, within sixty days of the date of the communication of the order to him again.

• REVIEW (SEC 44)- The disciplinary committee of a Bar Council may review any order within sixty days of the date of that order, passed by it. However, no such order of review of the disciplinary committee of a State Bar Council shall have effect unless it has been approved by the Bar Council of India.

BAR COUNCIL OF INDIA RULES

Section 49 of the advocates act 1961 empowers the Bar Council of India to frame rules regulating standards of professional conduct. Thus, “Bar Council of India rules” were enacted.

• Chapter X of the rules, laid down the complete procedure for the review of application, made under section 48AA of advocates act.

• Part IV is related to the “rules governing advocates”. And Chapter II of this part laid down the rules on the “standards of professional conduct and etiquette”, which are in brief as following.
• SECTION 1- DUTY TO THE COURTS-
• An Advocate shall, before a Court, conduct himself with dignity and self-respect.
• An Advocate shall maintain towards the Courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.
• An Advocate shall not influence the decision of a Court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden.
• An Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or parties which the Advocate himself ought not to do.
• An Advocate shall appear in Court at all times only in the prescribed dress, and his appearance shall always be presentable.
• An Advocate shall not wear bands or gown in public places other than in Courts except on such ceremonial occasions and at such places as the Bar Council of India or the Court may prescribe.
• An Advocate shall not appear in or before any Court or Tribunal or any other authority for or against an Organisation or an institution, society or corporation, if he is a member of the Executive Committee of such Organisation or institution or society or corporation.
• An Advocate should not act or plead in any matter in which he is himself pecuniarily interested.

• SECTION II – DUTY TO THE CLIENT-
• An Advocate shall not ordinarily withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client.
• An Advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate if he can retire without jeopardising his client’s interests.
• It shall be the duty of an Advocate fearlessly to defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.
• An Advocate shall not buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim. Nothing in this Rule shall apply to stock, shares and debentures or Government securities, or to any instruments, which are, for the time being, by law or custom negotiable, or to any mercantile document of title to goods.
• An Advocate shall not do any thing whereby he abuses or takes advantage of the confidence reposed in him by his client.
• Where the fee has been left unsettled,the Advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he had been engaged.
• An Advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party shall not act, appear or plead for the opposite party.

• SECTION III – DUTY TO OPPONENT
• An Advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an Advocate except through that Advocate.
• An Advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court.

• SECTION IV – DUTY TO COLLEAGUES
• An Advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photograph to be published in connection with cases in which he has been engaged or concerned. His sign-board or name plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or Organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General.
• An Advocate shall not permit his professional services or his name to be used in aid of, or to make possible, the unauthorised practice of law by any agency.
• An Advocate shall not enter appearance in any case in which there is already a vakalatnama or memo of appearance filed by an Advocate engaged for a party except with his consent.

• SECTION VI – DUTY TO RENDER LEGAL AID

Every Advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an Advocate owes to society.

• SECTION VII – RESTRICTION ON THEIR EMPLOYMENTS
• An Advocate shall not personally engage in any business; but he may be a sleeping partner in a firm doing business provided that, in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of the profession.
• An Advocate may be Director or Chairman of the Board of Directors of a company with or without any ordinary sitting fee, provided none of his duties are of an executive character. An Advocate shall not be a Managing Director or a Secretary of any company.
• An Advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practise, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an Advocate so long as he continues in such employment.
• An Advocate who has inherited, or succeeded by survivorship to, a family business may continue it, but may not personally participate in the management thereof.
•  An Advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and, subject to the rules against advertising and full-time employment, engage in broadcasting journalism, lecturing and teaching subjects, both legal and non-legal.

• Complete procedure for the disciplinary proceeding against advocate, is mentioned in Chapter VII of Rules. Chapter I is related to Complaints against advocates and procedure to be followed by disciplinary committees of the state bar council and the bar council of India. And chapter II is related to the review of the decision.

EXAMPLE OF PROFESSIONAL MISCONDUCT THROUGH CASE LAWS

• Writing a letter to his client to send money to bribe the Judge is a serious misconduct.

In Shambhu Ram Yadav vs Hanum Das Khatry[9], while giving above decision, the supreme court said that The disciplinary bodies are guardians of the due administration of justice. They have requisite power and rather a duty while supervising the conduct of the members of the legal profession, to inflict appropriate penalty when members are found to be guilty of misconduct. It is the duty of the bar councils to ensure that lawyers adhere to the required standards and on failure, to take appropriate action against them.

• It is not in accordance with professional etiquette for one advocate to hand over his brief to another to take his place at a hearing (either for the whole or part of the hearing), and conduct the case as if the latter had himself been briefed, unless the client consents to this course being taken.[10]

• Advocate abusing the process of court is guilty of misconduct. When witnesses are present in Court for examination the advocate concerned has a duty to see that their examination is conducted. Seeking adjournments for postponing the examination of witnesses who are present in Court even without making other arrangements for examining such witnesses is a dereliction of advocates duty to the Court as that would cause much harassment and hardship to the witnesses. Such dereliction if repeated would amount to misconduct of the advocate concerned.

Legal profession must be purified from such abuses of the Court procedures. Tactics of filibuster[11], if adopted by an advocate, is also professional misconduct.[12]

• An advocate is a guilty of professional misconduct if he did not inform the complainant about the progress of the case nor called upon the complainant to furnish any copies of any of the proceedings.[13]

• It is amounts serious professional misconduct if the advocate and his/her associates misappropriates the money paid to them for court fee, miscellaneous expenses and the professional fees, also if they don’t return the documents and other papers handed over to them for filing the suit and they don’t inform the status of case even after asking again and again.[14]

• Bar Council of Maharashtra v. M.V. Dahbolkar[15] is a very interesting case. The facts under consideration involved advocates positioning themselves at the entrance to the Magistrate’s courts and rushing towards potential litigants, often leading to an ugly scrimmage to snatch briefs and undercutting of fees. The Disciplinary Committee of the state Bar Council found such behavior to amount to professional misconduct, but on appeal to the Bar Council of India, it was the Bar Council of India absolved them of all charges of professional misconduct on the ground that the conduct did not contravene Rule 36 of the Standards of Professional Conduct and Etiquette as the rule required solicitation of work from a particular person with respect to a particular case. This approach of the Bar council of India was heavily reprimanded by the Supreme Court.

It was held that “professional ethics cannot be contained in a Bar Council rule nor in traditional cant in the books but in new canons of conscience which will command the member of the calling of justice to obey rules or morality and utility.”

• In Hikmat Ali Khan V. Ishwar Prasad Arya [1997 (3) SC 131] the concerned advocate assaulted his opponents with a knife. He was prosecuted and found guilty of commission of an offence under Section 307 of the IPC. In the aforementioned situation, it was held that the advocate deserves the extraordinary punishment of removal of his name from the state rolls of advocates.

DETERMINATION TO THE QUANTUM OF PUNISHMENT

A professional or other misconduct committed by a member of the profession should ordinarily be judged qua profession. To determine the quantum of punishment which may be imposed on an advocate, the test of proportionality shall be applied which would also depend upon the nature of the acts complained of. No universal rule thus can be laid down as regard initiation of a proceeding for misconduct of a member of the profession.[16]

CONCLUSION

There is a saying that, “God save from the white coat (doctors) and black coat (lawyers).” Because if anyone falls in the circle of them, s/he will not be able to remove himself/herself easily without spending a good amount of money.

But situation can be worst if lawyers will cheat the people with extracting amount from them. It will lessen the nobility and fidelity of the lawyers in the eyes of the people. There are a number of people who have no idea that they can report against the advocate if he did something very wrong against them. But a common person who already is stuck in a case how can we expect him that he will report against the advocate so most the time, only literate person come against the misconducts of lawyers.

Law is a noble profession, true; but it is also an elitist profession. When the constitution under Article 19 enables professional expertise to enjoy a privilege and the Advocates Act confers a monopoly, the goal is not assured income but commitment to the people whose hunger, privation and hamstrung human rights need the advocacy of the profession to change the existing order into a Human Tomorrow. This desideratum gives the clue to the direction of the penance of a devient geared to correction. Serve the people free and expiate your sin, is the hint.

REFERENCES-

1. Advocates Act, 1961
2. Bar Council of India Rules
3. V.C Ranga Durai v. D Gopalan AIR 1979 SC 281
4. State of Punjab v. Ram Singh AIR 1992 SC 2188
5. N.G Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028
6. Bar Councll Of Maharashtra vs M. V. Dabholkar Etc.1975 AIR 2092, 1976 SCR (1) 306
7. Shambhu Ram Yadav vs Hanum Das Khatry, AIR 2001 SC 2509
8. State of UP vs. Shambhu Nath singh [JT 2001 (4) SC 319]
9. Mana Mohamed Ismail vs V. Balarathnam; AIR 1965 Kant 28
10. Hikmat Ali Khan V. Ishwar Prasad Arya [1997 (3) SC 131]
11. D.S Dalal v. State Bank of India AIR 1993 SC 1608,
12. L.C. Goyal vs Mrs. Suresh Joshi & Ors; AIR 1999 SC 2222
13. Noratanmal Chouraria vs M.R. Murli & Anr 2004 AIR 2440

[1] V.C Ranga Durai v. D Gopalan AIR 1979 SC 281

[2] State of Punjab v. Ram Singh AIR 1992 SC 2188

[3] In Re A Solicior; ex parte Law Society‘ reported in 1912-1 K. B. 302 (G)

[4] N.G Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028

[5] ibid

[6] ibid

[7] Bar Councll Of Maharashtra vs M. V. Dabholkar Etc.1975 AIR 2092, 1976 SCR (1) 306

[8] Dastane v. shirikant, 2001 (4) S.C.T. 723

[9] AIR 2001 SC 2509

[10] V.C Ranga Durai v. D Gopalan AIR 1979 SC 281

[11] A filibuster is a parliamentary procedure where one or more members of a legislature debate over a proposed piece of legislation to delay or entirely prevent a decision being made on the proposal.

[12] N.G Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028, see also- State of UP vs. Shambhu Nath singh [JT 2001 (4) SC 319]

[13] Mana Mohamed Ismail vs V. Balarathnam; AIR 1965 Kant 28

[14] D.S Dalal v. State Bank of India AIR 1993 SC 1608, see also,

L.C. Goyal vs Mrs. Suresh Joshi & Ors; AIR 1999 SC 2222

[15] 1975 AIR 2092

[16] Noratanmal Chouraria vs M.R. Murli & Anr 2004 AIR 2440

This article is written by Advocate A.H. Gangohi.