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professional_ethics:misconduct

Professional Misconduct

Misconduct has not been defined in the Advocates Act, 1961. Misconduct, inter alia, envisages breach of discipline although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means – improper behaviour, intentional wrongdoing or deliberate violation of a rule or standard of behaviour. 1)

P. Ramanath Aiyar’s Law Lexicon - The term ‘misconduct’ implies a wrongful intention, and not a mere error of judgment. Misconduct literally means wrongful or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action. Misconduct in office may be defined as unlawful behavior or neglect by a public official by which the right of party have been affected.

Corpus Juris Secundum contains the following passage— “Professional misconduct may consist in betraying the confidence of a client, in attempting by any means to practise a fraud or impose on or deceive the court or the adverse party or his counsel and in fact in any conduct which tends to bring reproach on the legal profession or to alienate the favourable opinion which the public should entertain concerning it.”

The expression ‘professional misconduct’ was attempted to be defined by Darling J. In re A Solicitor Law Society2) as— “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 dishonourable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct.”

In the Bar Council of Maharashtra vs MV Dabholkar3) Krishna Iyer, J. said that— “The vital role of the lawyer depends upon his probity and professional lifestyle. The central function of the legal profession is to promote the administration of justice. As monopoly to legal profession has been statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of confidence of community in him as a vehicle of justice- social justice. The Bar cannot behave with doubtful scruples or strive to thrive on litigation. Canons of conduct cannot be crystalised into rigid rules, but felt by the collective conscience of the practitioners as right. Law is no trade, briefs no merchandise.”

Error of judgment is not misconduct

A mere error of judgment or expression of a reasonable opinion or taking a stand on a doubtful or debatable issue of law is not a misconduct. The term takes its colour from the underlying intention. But, at the same time, misconduct is not necessarily something involving moral turpitude. It is a relative term to be construed by reference to the subject matter and the context wherein the term is called upon to be employed.

A lawyer in discharging his professional assignment has a duty to 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 needs a high degree of probity and poise to strike a balance and arrive at the place of righteous stand more so when there are conflicting claims.

Lawyer should never knowingly be a party to deception

While discharging duty to the court, a lawyer should never knowingly be a party to any deception, design or fraud. While placing the law before the court, a lawyer is at liberty to put forth a proposition and canvass the same to the best of his wits and ability so as to persuade an exposition which would serve the interest of his client. However, a point of law well settled or admitting of no controversy must not be dragged into doubt solely with a view to contuse or mislead the judge and thereby gaining an undue advantage to the client to which he may not be entitled.

Professional misconduct is grave when it consists of betraying the confidence of a client and is gravest when it is a deliberate attempt at misleading the court or an attempt at practising deception or fraud on the court. The client places his faith and fortune in the hands of the counsel for the purpose of that case; the court places its confidence in the counsel in case after case and day after day. A client dissatisfied with his counsel may change him, but the same is not with the court. And so the bondage of trust between the court and the counsel admits of no breaking.4)

Misconduct under the Advocates Act

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.George Frier Grahame vs Attorney General5)

Professional or other misconduct

As the obvious sense suggests, misconduct in the course of profession is known as professional misconduct. The expression “professional or other misconduct” occurring in section 35 of the Advocates Act means misconduct in a professional or other capacity. By using these words, it has been made clear that the authority might take action in all cases of misconduct whether in professional or other capacity.

Negligence, whether professional misconduct

Whether negligence will amount to professional misconduct or not will depend upon the facts of each case. The appellant in the instant case was negligent as he had failed to attend to the two cases of his client who as a consequence had to suffer ex parte decrees, though there was no finding of any mala fides on the part of the appellant or any deliberate inaction on his part in not attending to the two cases. Hon’ble Supreme Court held that,

whether negligence will amount to professional misconduct or not will depend upon the facts of each case. Where the gross negligence in the discharge of duties partakes of shades of delinquency, it would undoubtedly amount to professional misconduct. Dereliction of duty by an advocate towards his client or towards his case would also amount to professional misconduct“.VP Kumaravelu vs Bar Council of India 6)

Mere negligence may not amount to professional misconduct

In the case of PD Khandekar vs Bar Council of Maharashtra7) the Hon’ble Supreme Court has expressed the opinion that,

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. For an advocate to act towards his client, otherwise than with utmost good faith is unprofessional. When an advocate is entrusted with a brief he is expected to follow norms of professional ethics and try to protect interests of his client in relation to whom he occupies a position of trust. Counsel’s paramount duty is to the client. When a person consults a lawyer for his advice he relies upon his requisite experience, skill and knowledge as a lawyer and the lawyer is expected to give proper and dispassionate legal advice to the client for the protection of his interests.”

Seeking repeated adjournments amounts to misconduct

In NG Dastane vs Shrikant Shivde8) an advocate, in order to defend one of the accused persons before a magistrate, sought for repeated adjournments. One of the adjournments was sought on the ground that he was unable to speak on account of a throat infection and continuous cough but the said advocate was found forcefully and fluently arguing a matter before another court situated in the same building. Thereafter, a complaint was lodged wherein a prima facie case was found to have been made out. Hon’ble Supreme Court directed the Bar Council of India to deal with the complaint.

In Hikmat Ali Khan vs Ishwar Prasad Arya9) the concerned advocate assaulted his opponent with a knife. He was prosecuted and found guilty of commission of an offence under section 307 of the IPC. It was held that the advocate deserves the extraordinary punishment of removal of his name from the State Roll of advocates.

Misappropriation of client’s money

Legal profession is not a trade or business. It is a noble profession. Members belonging to this profession have not to encourage dishonesty and corruption but have to strive to secure justice to their clients if it is legally possible. The credibility and reputation of the profession depends upon the manner in which the members of the profession conduct themselves.

Misappropriation of client’s money must be regarded as one of the gravest misconduct. In his professional capacity, the legal practitioner has to collect money from the client towards expenses of the litigation, or withdraw money from the court payable to the client or take money of the client to be deposited in court. In all such cases, when the money of the client reaches his hand, it is a trust. If an advocate misappropriates money of the client there is no justification in lessening the gravity of the misdemeanor. Perhaps the dimension of the gravity of such breach of trust would be mitigated only for a temporary period.

There may be justification to award a lesser punishment in a case where the delinquent advocate returned the money before commencing the disciplinary proceedings.NG Dastane vs Shrikant Shivde10)

Non-appearance in court amounts to professional misconduct

If any counsel does not want to appear in a particular court, having some justifiable reasons, professional decorum and etiquette require him to give up his engagement in that court so that the party can engage another counsel. But where it becomes a regular happening that the counsel retains the brief of his client, simultaneously abstains from appearing in the court, not for the fact of some personal inconvenience, that would amount to unprofessional as also unbecoming of the status of an advocate.Mahabir Prasad Singh vs M/s. Jacks Aviation Pvt. Ltd11)

Bar Council’s Power to punish for professional misconduct

After the coming into force of the Advocates Act, 1961, exclusive power for punishing an advocate for ‘professional misconduct’ has been conferred on the concerned State Bar Council and the Bar Council of India. That Act contains a detailed and complete mechanism for suspending or revoking the licence of an advocate for his professional misconduct.Supreme Court Bar Association vs Union of India12)

Punishment of advocates for misconduct

Section 35, Advocates Act, 1961

(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 of 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 shall fix a date for the hearing of the case 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 periods 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.

The punishment of removal of the name from the roll of advocates is called for where the misconduct is such as to show that the advocate is unworthy of remaining in the profession. Under section 24 (a), 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 involving moral turpitude which would 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 the punishment of removal of the name of the advocate from the roll of advocates.Hikmat Ali Khan vs Ishwar Prasad Arya13)

Right to appeal

Under section 37 of the Act, any person aggrieved by an order of the Disciplinary Committee may prefer an appeal to the Bar Council of India. Further, under section 38 of the Act, any person aggrieved by an order of the Bar Council of India may prefer an appeal to the Supreme Court.

About the Author

Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.

1)
See: Institute of Chartered Accountants of India vs HS Ghia, 2004 (4) Mh Lj 891
2)
1912 1 KB 302
3)
1976 2 SCR 48
4)
See: DP Chadha vs Triyugi Narain Mishra, AIR 2001 SC 457; (2001) 2MLJ 9 (SC); 2000 (8) SCALE 76
5)
AIR 1936 PC 224
6)
AIR 1997 SC 1014
7)
AIR 1984 SC 110
8) , 10)
AIR 2001 SC 2028: 2001 (6) SCC 135
9) , 13)
AIR 1997 SC 864
11)
AIR 1999 SC 287
12)
AIR 1998 SC 1895


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Created on 2021/01/16 17:01 by LawPage • Last modified on 2021/02/20 17:50 by LawPage