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PROCEDURE OF DISCIPLINARY COMMITTEE

AGAINST THE MISCONDUCT OF AN ADVOCATE.
*KOMAL HOTCHANDANI.1

ABSTRACT
Professional misconduct is any action which is outside the bounds of what is considered tolerable or
worthy of its membership by the governing body of a profession. Advocacy is a noble profession
because of which advocates are considered to be most responsible, privileged and knowledgeable
person of the society and their acts are the role model for the society. Members belonging to this
profession should not encourage deceitfulness and corruption, but they have to strive to secure justice
to their clients.

To deal with this concept we will be studying the activities of advocates and how their acts can be
termed as Professional Misconduct under various statues, the fiduciary relationship that an advocate
shares with his clients and how breach of such relation would amount to malpractice. Therefore to
understand the extent of an advocate act and by proposing suggestions to eliminate the malpractice
prevailing in the society by the legal professionals.

KEYWORDS: legal malpractice, advocates, negligence, fiduciary duty, justice, legal service

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INTRODUCTION

To promote a proper conduct of behaviour that to redundant the malpractices by Advocates

parliament enacted Advocate Act, 1961, a streamline statute to solely deals with the conduct of
Advocates. Chapter V of the Advocate Act, 1961, deals with the Conduct of Advocates. The provisions
in Chapter V relate to punishment for professional and other misconducts of Advocates. “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 it
disciplinary committee”2 Generally advocacy or legal profession is not a trade or business, it’s a
gracious, noble, and decontaminated profession for the benefit of society and the people in the
society. Members belonging to this profession must not indulge themselves into deceitfulness and
corruption, but they have to strive to secure justice to their clients. It’s a symbol of healthy
relationship between Bar and Bench. The Advocates Act, 1961 as well Indian Bar Council are silent in
providing exact definition for professional misconduct because of its wide scope, though under
Advocates Act, 1961 to take disciplinary action punishments are prescribed when the credibility and
reputation on the profession comes under a clout on account of acts of omission and commission by
any member of the profession3.

2
Section 35(1) of the Advocates Act 1961
3
Ibid- Wikipedia
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35. Punishment of advocates for misconduct―(1) 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. 4 [(1A) The State Bar
Council may, either of its own motion or on application made to it by any person interested, withdraw
a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other
disciplinary committee of that State Bar Council.] (2) The disciplinary committee of a State Bar Council
shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate
concerned and to the Advocate-General of the State. (3) 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:― (a) dismiss the complaint or, where the proceedings
were initiated at the instance of the State Bar Council, direct that the proceedings be filed; (b)
reprimand the advocate; (c) suspend the advocate from practice for such period as it may deem fit; (d)
remove the name of the advocate from the State roll of advocates. (4) Where an advocate is
suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension,
be debarred from practicing in any court or before any authority or person in India. (5) Where any
notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear
before the disciplinary committee of the State Bar Council either in person or through any advocate
appearing on his behalf. 5 [Explanation―In this section, 3 [section 37 and section 38], the expressions
“Advocate-General” and “Advocate-General of the State” shall, in relation to the Union territory of
Delhi, mean the Additional Solicitor General of India.]

4
Ins. by Act 60 of 1973, s. 24 (w.e.f. 31-1-1974).
5
Ins. by Act 21 of 1964, s. 17 (w.e.f. 16-5-1964)
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36. Disciplinary powers of Bar Council of India―(1) Where on receipt of a complaint or otherwise the
Bar Council of India has reason to believe that any advocate whose name is not entered on any State
roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its
disciplinary committee. (2) Notwithstanding anything contained in this Chapter, 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 person interested], withdraw for inquiry before itself
any proceedings for disciplinary action against any advocate pending before the disciplinary
committee of any State Bar Council and dispose of the same. (3) The disciplinary committee of the Bar
Council of India, in disposing of any case under this section, shall observe, so far as may be, the
procedure laid down in section 35, the references to the Advocate-General in that section being
construed as references to the Attorney-General of India. (4) In disposing of any proceedings under
this section the disciplinary committee of the Bar Council of India may make any order which the
disciplinary committee of a State Bar Council can make under sub-section (3) of section 35, and where
any proceedings have been withdrawn for inquiry before the disciplinary committee of the Bar Council
of India], the State Bar Council concerned shall give effect to any such order.

36A. Changes in constitution of disciplinary committees.―Whenever in respect of any proceedings

under section 35 or section 36, a disciplinary committee of the State Bar Council or a disciplinary
committee of the Bar Council of India ceases to exercise jurisdiction and is succeeded by another
committee which has and exercises jurisdiction, the disciplinary committee of the State Bar Council or
the disciplinary committee of the Bar Council of India, as the case may be, so succeeding may continue
the proceedings from the stage at which the proceedings were so left by its predecessor committee.
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1.In Harish Chandra Tiwari v. Baiju, (AIR 2002 SC 548) 6 , in which an advocate withdrew
the amount of compensation granted by the court in land acquisition proceedings and
did not pay the same to his client. The Supreme Court dealt with an appeal from the
advocate, who was suspended from practice for three years, for misappropriating the
amount of compensation, payable to his client. Advocate taking a hand loan from the
other party to the proceedings and failed to repay the same, amounts to professional
misconduct.

2.In B.R. Mahalkari v. Y.B. Zurange, [(1997)11 SCC 109] 7 the advocate failed to pay the
maintenance amount to the client after withdrawing it from the court. It was held that
it was a clear case of misconduct. The order of his suspension from practice, for three
years, was held to be Writing justifiable.

CONCLUSION
An advocate while discharging his professional assignment has a duty towards his client,
a duty to his opponent, a duty to the court, a duty to the society at large and a duty to
himself. It requires high degree of probity and poise to strike a balance to arrive at the
place of righteous stand, during the times when there are conflicting claims. An
advocate is also an office of the Court who has the responsibility to render services of
sound quality. Deficiency is services in the nature of absence when the matters are
scheduled, filing of incomplete and inaccurate pleadings, lots of time even illegible and
without personal check and verification, the nonpayment of court fees and process fees
amount to deficiency in court.

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(AIR 2002 SC 548)
7
[(1997)11 SCC 109]
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