PROFESSIONAL AND OTHER MISCONDUCT

The word ‘professional misconduct’ is nowhere defined in the Advocates Act,

and it is not possible to come up with a standard definition of it. This makes
precedents in this particular matter the only reliable source of understanding the
meaning of professional misconduct.
PRINCIPLES FOR DETERMINING MISCONDUCT
The advocates act, 1961 has not defined the term misconduct because of the wide
scope and application of the term. To understand the instances of misconduct we
have to rely on the decided cases. Some of the decided instances of professional
misconduct are –
1. professional negligence
2. misappropriation
3. changing sides
4. contempt of court and improper behaviour before a magistrate
5. furnishing false information
6. giving improper advice
7. misleading the clients in courts
8. no speaking the truth
9. suggesting to bribe the court officials
10.forcing the prosecution witness not to tell the truth
In the case of State of Punjab v. Ram Singh Ex. Constable, the Supreme Court
had observed that, 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.
Further the court had observed that professional misconduct may involve –
• Moral Turpitude • improper or wrongful behavior • unlawful behavior • willful
in character • a forbidden act • transgression • carelessness or negligence in the
performance of duty • or the act complained of bears forbidden quality or
character.

DISCIPLINARY COMMITTEE OF THE BAR COUNCIL

The Bar Council performs a regulatory function by prescribing standards of
professional conduct and etiquette and by exercising disciplinary jurisdiction over
the bar. The Council also sets standards for legal education and grants recognition
to Universities whose degree in law will serve as qualification for enrolment as
an advocate.
To exercise disciplinary jurisdiction, the Bar Council of India and every State Bar
Council has a disciplinary committee. Section 9 of Advocates Act, 1961, states
that every Bar Council shall consist of a Disciplinary Committee, where every
disciplinary committee shall consist of 3 members out of which two shall be
persons elected by the Council from amongst its members, and the third shall be
a person co-opted by the Council from amongst the advocates who possess the
qualifications specified in the proviso to sub-section (2) of section 3 (i. a person
who has been an advocate on a State roll for ten years) and who are not members
of the Council. The senior-most amongst the three shall be appointed as the
Chairman of the committee.
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.
[(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 4 *** 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 practising 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.
[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.]
What is ‘professional misconduct’
In Pandurang Dattatraya Khandekar v. Bar Council of
Maharashtra AIR 1984 SC 110, it was held that an act which is done
otherwise than with utmost good faith is unprofessional. – If it is shown
that a person, in the pursuit of his profession, has done something to it
which would be reasonably regarded as disgraceful or dishonourable by his
professional brethren of good repute and competency, then it is open to say
that he has been guilty of ‘infamous conduct in a professional respect’. It
was also observed, ‘There is a world of difference between the giving of
improper legal advice and the giving of wrong legal advice. Mere
negligence unaccompanied by any moral delinquency on the part of a legal
practitioner in the exercise of his profession does not amount to
professional misconduct.
In Prahlad Saran Gupta v. Bar Council AIR 1997 SC 1338 = (1997) 3
SCC 585, it was observed that charge of professional misconduct is quasi
criminal and requires proof beyond reasonable doubt.Misconduct implies
failure to act honestly and reasonably either according to ordinary and
natural standard, or according to the standard of a particular profession –
When conduct of a member of profession is contrary to honesty, or opposed
to good morals, or is unethical, it is misconduct.

Jagadish Singh and Others v. T.C

Jagadish Singh and others were employees of a School in New Delhi. They
approached T. Sharma, Advocate and paid a fees, to file a case against their
arbitrary dismissal from their School. The allegation is that without filing the case
the advocate has given a case number from the Administrative Tribunal, which
was found to be false. When the advocate refused to return the fees paid,
complaint was filed. Result: the Advocate was found guilty of misconduct)
Babulal v. Subash Jain
The complainant and the Respondent are advocates. The allegation is that though
a practicing lawyer, the respondent is also working as an Editor, Printer and
Publisher of a weekly which fact was not disclosed at the time of applying for
enrolment. Though the respondent denied the allegation it was found that the
respondent actively carried on the business as alleged and which amounted to
professional misconduct

N. (Appellant) v. K. (Respondent)
Appellant is a Govt. pleader and the respondent is a senior advocate. At the time
of going to the Advocates Association they had an argument with regard to a
mentioning before a judge of the High Court and it was alleged that the appellant
had used vulgar words against the complainant. Both the State Bar Council and
the BCI held that there was professional misconduct on the part of the Appellant
D. Interpretation of the phrase "Professional misconduct": or other
(i) Noratanmal Chouraria v. M.R. Murli, (2004) 5 SCC 689; In this case, in a
landlord tenant dispute, the landlord was an Advocate and he had filed an eviction
petition against the tenant. There were allegations of a physical altercation
between the landlord and tenant basis which the tenant filed a complaint against
the landlord for professional misconduct as an Advocate. The Hon'ble Supreme
Court while interpreting the word 'misconduct' inter alia, held that 'professional
or other misconduct' should ordinarily be judged qua the profession and not on
general allegations against the Advocate concerned.

(ii) Shambhu Ram Yadav Vs. Hanuman Das Khatry, (2001) 6 SCC 1 : In this
case, the Advocate had demanded an amount of Rs.10,000/- from the client as
illegal gratification, on behalf of the judge. The disciplinary committee of the Bar
Council decided to permanently disbar the concerned Advocate. However, in
review proceedings, the disciplinary committee reviewed its order and reduced
the punishment to that of reprimand. The Hon'ble Apex Court held that different
view by the disciplinary committee - is not permissible. It is a case of serious
misconduct and no sympathy could be shown. The appeal was allowed and
the original order for permanent disbarment of the Advocate was restored.

(iii) N.G. Dastane Vs. Srikant S. Shivde, (2001) 6 SCC 135

( iv) State of Punjab v. Ram Singh, (1992) 4 SCC 54 : The word "misconduct",
not defined statutorily, was interpreted by the Hon'ble Supreme Court in this case
(though in a different context, i.e. the disciplinary proceedings for misconduct
against a police personnel).

E. Professional Negligence:
(i) CBI Vs. K. Narayana Rao, (2012) 9 SCC 512: In this case, the allegation
was made against the Advocate for giving a wrong advice regarding the
encumbrances on the property mortgaged to the bank by one party for availing
loan. The criminal proceedings against the Advocates were quashed by the High
Court and the appeal of CBI was rejected by the Hon'ble Supreme Court. It was
held that erroneous advice does not constitute professional negligence. Further,
unless the Advocate has actively conspired with the defaulters, it cannot be held
to be a case of criminal negligence.
F. Fee related misconduct:
(i) D.S. Dalal Vs. State Bank of India, 1993 Supp (3) SCC 557

(ii) L.C. Goyal Vs. Suresh Joshi, (1999) 3 SCC 376: In this case, the Advocate
misappropriated an amount of Rs.25,000/- given to him by the client towards
payment of court fee. When the money was demanded back by the client, the
Advocate issued a cheque for the same. However, even the said cheque got
dishonoured. The Hon'ble Supreme Court held it to be case of professional
misconduct.

(iii) R.D. Saxena Vs. Balram Prasad Sharma, (2000) 7 SCC 264: In this case,
the Hon'ble Supreme Court reiterated the salient principle that the Advocate has
no lien on the litigation papers. The advocate cannot refuse to return the files to
the client even if there is a dispute regarding non-payment of fees. It was held
that the cause of the court is more important than the right of the Advocate to
receive fees. Litigation papers are not 'goods bailed' u/s 148 or 171 of the Indian
Contract Act, 1872. Further, every litigant has a right to appoint a pleader of
his/her choice, under Article 22 of the Constitution as well as under Order 3 Rule
4 CPC.
G. Personal Interest of Advocate:
(i) Rajendra V. Pai Vs. Alex Fernandes, (2002) 4 SCC 212 : In this case, the
appellant Advocate was defending land acquisition proceedings where his own
family property was also involved. Further, he solicited work from the adjacent
villages, indulged in fixing contingent fee i.e. contingent on the success in the
proceedings and also wrongly identified various claimants in the said
proceedings. The conduct of the Advocate was held to be a gross professional
misconduct. While the Bar Council debarred the Advocate from practicing for
life, the Hon'ble Supreme Court reduced the punishment to debarment for a period
of 7 years.
H. Misappropriation of money:
(i) Harish Chandra Tiwari Vs. Baiju, (2002) 2 SCC 67: In this case, the
Advocate had received compensation of Rs.8,000/- in the land acquisition
proceedings, on behalf of his client. However, he misappropriated the money.
Even in the proceedings before the disciplinary committee, the Advocate filed a
forged affidavit of the client stating that the money has been returned. The
Hon'ble Supreme Court held that misappropriation of client's money is the gravest
form of misconduct. The punishment of permanent debarment was imposed upon
the Advocate.
(ii) Bar Council of Andhra Pradesh Vs. Kurapati Satyanarayana, (2003) 1
SCC 102: The Advocate had received decretal amount of Rs.14,000/- received
in execution proceedings, on behalf of his client. However, he did not pay the
said amount to the client. The Hon'ble Apex Court reiterated that
misappropriation of money is the gravest form of professional misconduct and
that removal from the rolls of Bar Council would be the only appropriate
punishment for the said Advocate.

I. Physical Assault by Advocate:

(i) Hikmat Ali Khan Vs. Ishwar Prasad Arya, (1997) 3 SCC 131: In this case,
the Advocate assaulted the opposing counsel in the courtroom with a knife, and
also shot him with a pistol. He was convicted u/s 307 IPC. In the disciplinary
proceedings, he produced a forged letter in the name of the Home Secretary
stating that the Hon'ble Governor has suspended his conviction. The Hon'ble
Supreme Court held that it is a case of grave misconduct and that the Advocate is
unworthy of remaining in the profession. His name was struck off the rolls.

Section 42: Powers Of Disciplinary Committee | The Advocates Act, 1961

(1) 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 (5 of 1908), in respect of the following
matters, namely:

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

Provided that no such disciplinary committee shall have the right to require the attendance of:

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

(2) All proceedings before a disciplinary committee of a Bar Council shall be deemed to be
judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code (45
of 1860), and every such disciplinary committee shall be deemed to be a civil court for the
purposes of sections 480, 482 and 485 of the Code of Criminal Procedure, 1898(5 of 1898).

(3) For the purposes of exercising 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
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.

(4) Notwithstanding the absence of the Chairman or any member of a disciplinary committee
on a 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 proceedings and no order
made by the disciplinary committee in any such proceedings shall be invalid merely by reason
of the absence of the Chairman or member thereof on any such date:

Provided that no final orders of the nature referred to in sub-section (3) of section 35 shall be
made in any proceeding unless the Chairman and other members of the disciplinary committee
are present.
(5) Where no final orders of the nature referred to in sub-section (3) of section 35 can be made
in any proceedings in accordance with the opinion of the Chairman and the members of a
disciplinary committee either for want of majority opinion amongst themselves or otherwise,
the case, with their opinion thereon, 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.