DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
SESSION: 2021-2022

FINAL DRAFT
SUBJECT: Professional Ethics

“PROFESSIONAL MISCONDUCT: AN ANALYSIS”

UNDER THE SUPERVISION OF: SUBMITTED BY:

DR MANOJ KUMAR HARSH GAUTAM
Assistant Professor (Law) Enrolment No: 170101061
Department of Legal Studies BA.LLB(Hons.)- IX Sem.

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 ACKNOWLEDGEMENT

The present project on the “PROFESSIONAL MISCONDUCT” has been able to get its final
shape with the support and help of people from various quarters. My sincere thanks go to all the
members without whom the study could not have come to its present state. I am proud to
acknowledge gratitude to the individuals during my study and without whom the study may not
be completed. I have taken this opportunity to thank those who genuinely helped me.

With immense pleasure, I express my deepest sense of gratitude to Dr. Manoj Kumar, Faculty
for Professional ethics, RMLNLU for helping me in my project. I am also thankful to the whole
RMLNLU family that provided me all the material I required for the project. Not to forget
thanking to my parents without the co-operation of which completion of this project would not
have been possible.

I have made every effort to acknowledge credits, but I apologize in advance for any omission
that may have inadvertently taken place.

Last but not least I would like to thank Almighty whose blessing helped me to complete the
project.

I thank all of them!

HARSH GAUTAM,
Sem IX
B.A.L.L.B. (H)

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Method of Research:

The method adopted in making this project is the Doctrinal Method of research. Doctrinal Study
basically deals with theoretical study which includes use of Journals, Articles, Newspapers,
Websites, Books etc. which shows in itself the very pattern of study.
This method of study is adopted because it is less exhaustive, less time consuming and most
importantly it deals with library study in general. And as a matter of fact, it is one of the best
methods to be adopted so as to get authentic material and provides numerous solutions to the
problems.

Aims and Objectives:

The aim of the project is to present a detailed study on professional misconduct.

Scope and Limitations:

Though this is an immense project and pages can be written over the topic but because of certain
restrictions and limitations I was not able to deal with the topic in great detail. The point on
which special emphasis has been given is in this research.

Sources of Data:

The following SECONDARY SOURCES of data have been used in the project-

1. Books

2. Websites

3. Articles

Hypothesis

 Professional misconduct is rampant in our judicial system which is egregious for the
society at large.

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 TABLE OF CONTENTS
 RESEARCH METHODOLOGY
 INTRODUCTION
 MEANING OF PROFESSIONAL MISCONDUCT
 DUTIES OF AN ADVOCATE
 CASELAWS
 CONCLUSION
 BIBLIOGRAPHY

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CHAPTER I: INTRODUCTION

Misconduct is the antonyms of conduct. Conduct means behavior with good manners and
treatment shown towards others. Misconduct represents misbehavior. Misconduct as explained
in the Dictionary is 'improper conduct'. The term 'misconduct' has been defined in Black's
Dictionary as 'a transgression of some established and defined rule of action, a forbidden act , a
dereliction of duty, unlawful behavior, willful in character, improper or wrong behavior'.
Its synonyms are misdemeanor, impropriety, mismanagement, offence, but not negligence or
carelessness.

In State of Panjab V. Ram Singh the Supreme Court held that the term may involve moral
turpitude.1

An advocate is bound to conduct himself in a manner befitting the high and honorable legal
profession. The legal profession is a noble profession having high traditions. An advocate is
expected to uphold those traditions. He must comply with the conduct of professional ethics and
etiquette as laid down by bar council of India.

Advocacy is a noble and honorable profession. An advocate must strictly comply with
professional ethics or else he may be liable for professional misconduct.

The term ‘Professional Misconduct’ in the simple sense means improper conduct. In legal sense
it means an act done willfully with a wrong intention by the people engaged in the profession. It
means any activity or behavior of an advocate in violation of professional ethics for his selfish
ends. If an act results in dispute to his profession and make him unfit of being in the profession,
it amounts to ‘Professional Misconduct’. In other words, an act which disqualifies an advocate to
continue in legal profession.2

1
AIR 1992 SC 2188
2
Srdlawnotes.com

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MEANING OF PROFESIONAL MISCONDUCT-

Section 35 of the Advocate makes it clear that an advocate may be punished for professional
misconduct or other misconduct. The terms misconduct and professional misconduct are not
defined In Section 35 or any other provisions of the Advocate Act, 1961. The expression
'professional or other misconduct' are mentioned in section 10 of Bar councils Act,1926. by
using those words it was made clear that the authority might take action in all cases of
misconduct, whether in professional or other capacity.

Every misconduct may not be Professional or other misconduct. Only unsatisfactory

professional conduct of a substantial, recurring or continuing nature is considered as professional
or other misconduct. Thus a guilty or fraudulent grossly improper conduct of an advocate in the
discharge of his professional duty is considered as professional misconduct.

Professional misconduct is conduct occurring otherwise than in connection with the practice of
law that would justify a finding that its preparation is not of good fame and character or is not a
fit and proper person to remain on the Roll of Legal Practitioners.

Giving of improper Advice and wrong Advice -

It is professionally improper for a member of Bar to prepare false document or to draw pleadings
knowingly that the allegations made are untrue to his knowledge. Thus, giving of improper legal
advice may amount to professional misconduct.

Negligence and Professional misconduct -

Whether negligence will amount professional misconduct or not depends upon the facts and
circumstance of each case. Gross negligence in the discharge of duties partake of shade of
delinquency and would undoubtedly amount to professional misconduct. But negligence without
moral turpitude or delinquency may not amount to professional misconduct.

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Moral turpitude -
Moral turpitude is very serious professional misconduct. From section 24-A of the Advocate
Act, it is clear that a person cannot be admitted as an advocate on a State Roll if he is convicted
of an offence involving moral turpitude. Thus, a person who is convicted of an offence
involving moral turpitude is disqualified for being admitted as an advocate on the State Roll of
advocates. This means that the conduct involving conviction of an offence moral turpitude
which will disqualify a person from being enrolled as an advocate has to be considered a serious
misconduct. when found to have been committed by a person who is enrolled as an advocate
and it would call for the imposition of punishment of removal of the name of the advocate from
the Roll of Advocates.3

3
Legalservicesindia.com

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 DUTIES OF AN ADVOCATE

The advocates in India are governed by the Advocates Act, 1961. Further, the Bar Council of
India was created by the Parliament under the Advocates Act, 1961. It is a statutory body that
regulates and represents the Indian bar. It prescribes standards of professional conduct and
etiquette and exercises disciplinary jurisdiction. Section 49(1)(c) of the Advocates Act, 1961
empowers the Bar Council of India to make rules so as to prescribe the standards of professional
conduct and etiquette to be observed by the advocates. Such rules are mentioned under chapter II
of part VI of the Bar Council of India rules, 1975.

The rules mentioned on standards of professional conduct and etiquette shall be adopted as a
guide for all advocates in conducting matters related to law.

Some of the rules laid down by the bar council under chapter II of part VI of the Bar Council of
India rules, 1975 are as follows:-

An Advocate’s duty towards the Court

 To act in a dignified manner before the court.

 To maintain towards the court a respectful attitude.
 Not to influence the decision of a Court by any illegal or improper means.
 Not to appear in matters of pecuniary interest.
 To appear in proper dress code.
 Not to wear bands or gowns in public places.
 Refuse to appear in front of relations.

An Advocate’s duty towards the Client

 Not ordinarily withdraw from serving a client once he has agreed to serve them.
 Not to appear in a case in which he is a witness
 To uphold the interests of his client by all fair and honorable means.
 The advocate should not by any means, directly or indirectly, disclose the communications
made by his client to him

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 An Advocate’s duty towards the 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.
There are various other duties and rules that are provided to be followed by an Advocate. Non-
compliance to any of the stated rules by an Advocate would be considered as professional
misconduct.4

4
Blogipleaders.in

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CASELAWS

Dereliction of Duty

Dereliction of Duty means handing over brief to another advocate and such transfer is considered
as unprofessional but if he does so with the consent of his client, it is not improper.

V.C Ranga Durai v. D Gopalan5

The Supreme Court in this case held that a lawyer entrusted with a brief must follow the norms
of professional ethics and must protect the interests of his clients.

Professional Negligence

An advocate is expected to exercise reasonable skill and prudence and should not be negligent.
In order to constitute misconduct, the negligence must be accompanied by –

 suppression of truth or
 deliberate misrepresentation of facts

Case: Mohd. Ismail v. Balarathna6

It was held that it amounts to misconduct if an advocate neglects to furnish requisite documents
or material papers despite of repeated adjournments.

Case: N.G Dastane v. Shrikant S. Shivde7

The Supreme Court has made it clear that seeking repeated adjournments for postponing
examination of witnesses present in the Court amounts to misconduct and an advocate may be
punished.

5
AIR 1979 SC 281
6
AIR 1965 Mys. 28
7
AIR 2001 SC 2028

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3. Misappropriation

When an advocate collects money from his clients for court purposes and misuses it is called as
misappropriation which amounts to professional misconduct.

Case: D.S Dalal v. State Bank of India8

In this case there was a complaint against an advocate that he misappropriated the amount paid to
him towards the filing of suit and professional fees. The advocate pleaded that the suit papers
were misplaced by the High Court Registry. It was duly established that the suit papers were
returned to the advocate for removing objections but the advocate did not refile the suit for a
long time. The Disciplinary Committee found him guilty of misappropriation of money paid to
him by his client and therefore, punished him for professional misconduct.

Case: L.C Goyal v. Suresh Joshi9

In this case the advocate misappropriated the money received as court-fee.

He was held guilty of professional misconduct.

4. Contempt of Court and Improper behavior before Magistrate

An advocate must respect the court and maintain the dignity. Making of false allegations against
the judicial officers amounts to gross misconduct.

Furnishing false information

Furnishing false information amounts to ‘professional misconduct’.

8
AIR 1993 SC 1608
9
AIR 1999 SC 2222

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Case: Emperor v. K.C.B A Pleader10

In this case certain tins of ghee were seized by Municipal authorities on being adulterated and
kept under the custody of a Marwari. The advocate falsely told the Marwari that the Sub-
Divisional Office had ordered that the tins to be handed over the owner.
The advocate was held guilty of misconduct.

6. Appearing for both the sides

An advocate is under a duty to do his best to protect the interest of his clients. He must not
represent conflicting interest.

7. Giving Improper Advice

Advocacy being a noble profession, an advocate must give his clients the benefit of his learning,
talent and judgment. An advocate must give his proper advice if he is unable to take up the brief
he should advice the client to consult another counsel but should not give improper advice.
Improper advice amounts to misconduct.

10
AIR 1935 Cal. 547

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CONCLUSION

From the analysis of various cases and certain facts and circumstances, it will be clear that unlike
any other profession, advocacy is regarded as a noble profession and professional ethics must be
maintained. Courts have dealt with various cases of professional misconduct wherein attempt of
murder by the advocate towards his client have also been reported. Hence, there must be
interference from concerned authorities so that persons with a criminal background are kept
away from this profession. Even though there are guidelines dealing with the social background
of the person enrolling in this profession, i.e. the person enrolling must be free from any criminal
cases, it does not prove that the person has a criminal nature of his own. So Bar Council can
implement certain rules and regulation so that the conduct of the person who is showing criminal
behaviour can be controlled strict guidelines ensuring that the person no longer acts unlawfully
against his profession. There must be various career guidance and development programs
conducted by the Bar Council immediately after enrolment so that new legal professionals they
will be aware of the do’s and don’t of this profession and there will be a better group of
advocates in the coming decades.

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BIBLIOGRAPHY

Retrieved on: http://www.legalservicesindia.com/article/article/professional-misconduct-by-

lawyers-in-india-1621-1.html

[2] Retrieved on: http://www.legalservicesindia.com/article/print.php?art_id=1665

[3] Retrieved on: https://indiankanoon.org/doc/1460739/

[4] Retrieved on: http://www.legalservicesindia.com/article/article/professional-misconduct-of-

lawyers-in-india-1665-1.html

[5] Retrieved on: https://en.wikipedia.org/wiki/Contempt_of_court

[6] In Re: Vinay Chandra Mishra AIR 1995 SC 2348.

Retrieved on: http://www.legalserviceindia.com/articles/sc_t.htm

[7] V.C. Rangadurai v. D. Gopalan and ors 1979 AIR 281

[8] J.S Jadhav v. Musthafa Haji Muhammed Yusuf and ors 1993 AIR 1535

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