Professional Misconduct by lawyers in India

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Author : ekta.saini
Published on : January 14, 2014


  
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Ekta Saini 5TH YEAR STUDENT Amity Law School, GGSIPU

Professional Misconduct by lawyers in India

Professional Misconduct- Meaning
The misconduct has been defined in Black’s Dictionary as transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behaviour, improper or wrong behaviour.
Its synonyms are misdemeanour, impropriety, mismanagement, offence but not negligence or carelessness.

In the case Noratanmal Chaurasia v. M.R. Murli the Supreme court has held that misconduct has not been defined in the Advocates Act, 1966 but misconduct envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute misconduct and indiscipline which, however, is wide enough to include wrongful omission or commission, whether done or omitted to be done intentionally or unintentionally.

In re Tulsidas Amanmal Karim it has been held that any conduct which in any way renders a person unfit for exercise of his profession or is likely to tamper or embarrass the administration of justice by the High Court or any other court subordinate thereto may be taken as misconduct.

In the matter of an advocate , if the conduct of an advocate is such as to make him unworthy to remain a member of the honourable legal profession and unfit to be entrusted with the responsible duties that an advocate is called upon to perform, he will be guilty of misconduct and may be punished therefore.

Thus in this case following two tests have been laid down:-
a) The conduct of the advocate is such that he must be regarded as unworthy to remain a member of the honourable profession
b) The conduct of the advocate is such that he must be regarded as unfit to be entrusted with the responsible duties that an advocate is called upon to perform.
These two tests have been interpreted as disjunctive and therefore the fulfilment of any one of the said conditions would be sufficient to treat the conduct as misconduct.

Some important cases relating to Professional Misconduct
Purchase of the property in dispute of the client
Case: P.D. Gupta v. Ram Murti and Anr.
Facts: One Srikishan Dass died leaving behind extensive immovable properties. Claims to the said properties were made by one Vidyawati claiming to be the sister of the deceased , one Ram Murti and two others who claimed themselves to be the heir of the deceased.
Later the said properties were purchased by the advocate of Vidyawati knowing them to be disputed. The advocate thereafter sold the property to a third party and made profit. A complaint was made against the advocate to the Bar Council of Delhi.

Held: Since the disciplinary committee of the Bar Council of Delhi could not dispose of the complaint within a period of one year and therefore the proceedings had been transferred to the Bar Council of India under Section 36-B of the Advocates Act. The disciplinary committee of the Bar Council of India found him guilty of professional misconduct and suspended him from practice for period of one year.

Non filing of the case or filing of the case with nominal court fees
Case : Allahabad Bank v. Girish Prasad Verma
Facts: In this case complainant Allahabad Bank filed complaint against the advocate Girish Chandra Verma alleging that out of the 52 suits which were given to the advocate for filing in the court 50 suits were filed with nominal court fees and 2 suits were not filed at all and the advocate misappropriated the sum the sum paid to him by the complainant for the purpose of court fees.
Held : U.P Bar Council disciplinary committee held that the advocate has misappropriated the amount of the court fees and further ordered for the striking of the name of the advocate from the roll of the U.P Bar Council. The committee made it clear that legal profession is a noble profession and its members must set an example of conduct worthy of emulation.

Deliberate delay in filing of the suit
Case: Prof. Krishanraj Goswami v. Vishwanath D. Mukashikar
Facts: In this case the appellant advocate made a delay in filing in filing the suit and also made a delay in moving the interim application due to which the complainant suffered huge losses. The complainant gave two written notices to the to the appellant advocate for the return of the papers so that he could engage separate lawyers but the appellant advocate did not respond. It was also alleged by the complainant that the advocate did this deliberately in connivance with the other side

Held: the Disciplinary Committee of the Bar Council of Maharashtra and Goa found him guilty of professional misconduct and imposed punishment of suspension of licence for three years.

Suppression of material facts with intention to harass poor persons
Case: Smt. Sudesh Rani v. Munish Chandra Goel
Facts:
In this case the respondent advocate filed suits for the eviction of the tenants by suppressing the fact of an earlier compromise decree by which the tenants were declared as owners.The respondent advocate should have disclosed the material facts since his wife and he himself were involved in the compromise of the suits.
Held: The respondent advocate was held guilty of having committed professional as well as other misconduct. The committee ordered that his licence to practice would be suspended for a period of two years.

Manipulation of the judgement and the decree
Case: Surendra Nath Mittal v. Daya Nand Swaroop
Facts: In this case the respondent advocate made manipulation in the operative part of the judgement and decree by adding the words “mai sood” i.e including interest. The respondent advocate however denied the allegation and contended that he had not committed any offence.
Held: The disciplinary committee found the advocate guilty and held that it was the respondent advocate who had added the words subsequently and that the same amounts to professional misconduct The committee ordered for his suspension for one year.

Handing over of forged documents to the opposite party
Case: Pratap Narain v. Y.P. Raheja
Facts: In this case the complainant alleged that the respondent handed over him a forged stay order while no stay order was passed by the court in the case. The respondent however pleaded that the forged stay order was handed over to the complainant by his clerk.
Held: The committee after examining the facts, evidence etc., held that the respondent was guilty of professional misconduct of serious nature as he had forged the order of the court. Consequently, the Disciplinary committee ordered removal of his name from the roll maintained by the Bar Council of Delhi.

Not appearing before the court deliberately and intentionally
Case: Smt. P. Pankajam v. B.H. Chandrashekhar
Facts: In this case the complainant Smt. Pankajam filed a case against against her advocate alleging misconduct on his part as after accepting the brief and having received the payment he did not attend the proceedings and she lost the case.

Held: The Disciplinary Committee of Bar Council of India held that the advocates conduct in not appearing before the court was an intentional and deliberate act. The committee held the respondent advocate guilty of profession misconduct and ordered that he be suspended from practice for a period of two years.

Defrauding the client by exploiting his/her illiteracy
Case: Vikramaditya v. Smt. Jamila Khatoon
The obtaining of the signature by the advocate on blank vakalatnama and blank water marked papers for the purpose of defrauding the client’s amounts to the professional misconduct.

Advocate actively engaged in carrying other business
Case: Babu Lal Jain v. Subhash Jain
Facts: The complainant was an advocate. He alleged that the respondent advocate was a practising lawyer as well as was working as an editor, printer, and publisher of a weekly called “Aaj Ki Janata”.
Held: Rule 47 of BCI rules prohibits an advocate to be engaged personally in any business. The respondent advocate was found to have been actively engaged in carrying on the business and his conduct was take by the disciplinary committee as profession misconduct.

Advocate attending the court with fire arms
Case: UP Sales Tax Service Association v. Taxation Bar Association, Agra
Facts: In the case the advocate was attending the court with licence fire arm for the purpose of self defence.
Held: It was held that such a conduct was inconsistent with the dignity of legal profession and amounts to professional misconduct.
Refusal to return the will

Case: John D’souza v. Edward Ani
Facts: In this case the respondent Edward Ani lodged the complaint with the Karnataka Sate Bar Council alleging that the appellant with whom the will executed by his mother in law Mrs. Mary Raymond was entrusted with safe custody refuse to return that will in spite of two letters demanding to hand over the will.
Held: The Supreme Court held that the advocate has committed breach of his professional duty and found him guilty of profession misconduct.

The Body or Authority empowered to punish for Professional or Other Misconduct
State Bar Council and its Disciplinary Committee
Section 35 : Punishment of Advocates for misconduct

Initiation and Procedure
(1) Where on the receipt of the complaint or otherwise the State Bar Council has reason to believe that any advocate on roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
(2) Where the case is referred to the disciplinary committee for inquiry and disposal, the committee is required to fix a date for hearing the case and cause a notice to be given to the advocate concerned and the Advocate General of the state.

Powers
(3) Section 35(3) provides that after giving the advocate concerned and the Advocate General an opportunity of being heard, the disciplinary committee of the state bar council may make any of the following orders :-
(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) It is to be noted that where the advocate is suspended from practice under the aforesaid clause (c), he shall, during the period of suspension , be debarred from practicing in any court or before any authority or person in India.

Section 41: Alteration in the roll of advocates
Where an order is made reprimanding or suspending an advocate, a record of the punishment shall be entered against his name in the state roll and where an order is made removing an advocate from practice , his name shall be struck off the state roll.

Section 36-B: Disposal of disciplinary proceedings
This section provides that the disciplinary committee of the State Bar Council shall dispose of the complaint received by it under section 35 expeditiously and 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 the initiation of the proceedings at the instance of the State Bar Council, as the case may be, failing which such proceedings shall stand to the BCI which may dispose of the same as if it were proceedings withdrawn for inquiry under section 36(2).

Remedy against the order of punishment by the State Bar Council
Section 44: Review of order by disciplinary committee
The disciplinary committee of Bar Council may of its own motion or otherwise review any order, within 60 days of the date of the order passed by it .
However no such order of the review of the disciplinary committee of a State Bar Council shall have effect, unless it has been approved by the Bar Council of India.

Section 37: Appeal to the Bar Council of India
(1) Any person aggrieved by an order of the disciplinary committee of the State Bar Council made Under Section 35 or the Advocate General of the State may within 60 days of the date of the communication of the order to him , prefer an appeal to the Bar Council of India.

(2) Every such appeal shall be heard by the disciplinary committee of the BCI which may pass such order including order varying the punishment awarded by the disciplinary committee of the State Bar Council as it deems fit.

(3) No order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of the BCI so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.

Bar Council of India and its Disciplinary Committee
Section 36: Disciplinary Powers of Bar Council of India
(1) Where on the receipt of the 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 profession or other misconduct , it shall refer the case for disposal to its Disciplinary Committee.

(2) Disciplinary Committee of the Bar Council of India may either on 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 any proceedings for disciplinary action against any advocate pending before the disciplinary committee of the State Bar Council and dispose of the same.

(3) In disposing of the case, the disciplinary committee of the Bar Council of India shall observe the procedure laid down in section 35, the reference to the Advocate General in that section being construed as references to the Attorney General of India.

(4) 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.
It also make it clear that 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.

Remedy against the order of punishment by the Bar Council of India
Section 48-AA: Review
The bar council of India or any of its committee , other than its disciplinary committee , may on its own motion or otherwise, review any order, within 60 days of the date of that order, passed by it under the Advocates Act.

Section 38: Appeal to the Supreme Court
Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under Section 36 or Section 37 or the Attorney General of India or the Advocate General of the state concerned, as the case may be , may within 60 days of the date on which the order is communicated to him, prefer an appeal to the supreme court and the supreme court may pass such order including an order varying the punishment awarded by the disciplinary committee of the Bar council of India thereon as it deems fit.
However no order of the disciplinary committee of the Bar council of India shall be varied by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard.

Professional Misconduct vis-a-vis Contempt of Court
• The ambit of contempt proceedings is much wider than proceedings for professional misconduct as proceedings for professional misconduct can be carried out against the advocate only whereas contempt proceedings can be initiated against members of bar and bench both.
• In case of contempt of court there is no fixed procedure for initiation or punishment of the accused/guilty and whereas proceedings in case of professional misconduct are to be carried out as per the Advocates Act 1966 which lays down a detailed procedure for the same.
• Criminal Procedure Code and Indian Evidence Act are not applicable in case of proceedings for contempt of court as these proceedings are carried on the basis of the principles of Natural Justice- objectivity and fairness respectively.
• In contempt of court proceedings cross examination is allowed in limited cases only.
For example in case of contempt proceedings against R.K Anand, Mr. R.K. Anand was not allowed to cross examine Ponam Aggarwal who was in charge of the sting operation.
Whereas cross examination is an important aspect of proceedings for professional misconduct.
• The punishment for contempt of court as envisaged in the Contempt of Court Act is also different from the punishment for professional misconduct as envisaged under Advocates Act, 1966.

It is to be noted that proceedings for contempt and professional misconduct can be carried out simultaneously.
Case: Suo Motto Enquiry v. Nand Lal Balwani
Facts: The respondent advocate hurled the shoes and shouted slogans in the Supreme Court of India.Both contempt and proceedings for professional misconduct were initiated against him.
Held: The Supreme Court found him guilty for contempt of court and awarded him a simple imprisonment for four months and fine of 2000 Rupees.
Further the DC of BCI also found him guilty of professional misconduct and ordered his name to be removed from the roll of Bar Council of Maharashtra and Goa.
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# State of Punjab v. Ram Singh, AIR 1992 SC 2188
# AIR 1941 Bom 228
# AIR 1934 Rang 33
# Civil Appeal No. 15496/1986
# BCI Tr. Case No. 49/1993
# D.C. Appeal No. 40/1995
# BCI Tr. Case No. 43/1996
# BCI Tr. Case No. 63/1987
# BCI Tr. Case No.40/1993
# BCI Tr. Case No.86/1992
# D.C. Appeal No. 21/1996
# BCI Tr. Case No.115/1996
# AIR 1996 SC 98
# AIR 1994 SC 975
# BCI Tr. Case No. 68/1999

The  author can be reached at: ekta.saini@legalserviceindia.com

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