Professional misconduct of lawyers in India

Introduction

Advocacy is a noble profession and an advocate is the most accountable, privileged

and erudite person of the society and his act are role model for the society, which
are necessary to be regulated. Professional misconduct is the behavior outside the
bounds of what is considered acceptable or worthy of its membership by the
governing body of a profession. Professional misconduct refers to disgraceful or
dishonorable conduct not befitting an advocate. Chapter V of the Advocate Act,
1961, deals with the conduct of Advocates. It describes provisions relating to
punishment for professional and other misconducts. Section 35(1) of the Advocate
Act, 1961, says, 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.
Generally legal profession is not a trade or business, it’s a gracious, noble, and
decontaminated profession of the society. Members belonging to this profession
should not encourage deceitfulness and corruption, but they have to strive to secure
justice to their clients. The credibility and reputation of the profession depends
upon the manner in which the members of the profession conduct themselves. 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 profession.

Meaning and Definition

The attributes of a profession as laid down by Dalton E. McFarland are;

1) The existence of a body of specialized knowledge or techniques

2) Formalized method of acquiring training and experience

3) The establishment of representative organization with professionalism as its

goal.

4) The formation of ethical codes for the guidance of conduct.

5) The charging of fees based on services but with due regards for the priority of
service over the desire for monetary rewards.

In law profession misconduct 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 creates
disrespect to his profession and makes him unworthy of being in the profession, it
amounts to professional misconduct. In other word an act which disqualifies an
advocate to continue in legal profession.

Misconduct is a sufficiently wide expression, and need not necessarily imply the
involvement of moral turpitude. ‘Misconduct’ per se has been defined in the
Black’s Law Dictionary to be “any transgression of some established and definite
rule of action, a forbidden act, unlawful or improper behavior, willful in character,
a dereliction of duty.” In a different context, the Supreme Court has opined that the
word “misconduct” has no precise meaning, and its scope and ambit has to be
construed with reference to the subject matter and context wherein the term occurs.
In the context of misconduct of an advocate, any conduct that in any way renders
an advocate unfit for the exercise of his profession, or is likely to hamper or
embarrass the administration of justice may be considered to amount to
misconduct, for which disciplinary action may be initiated.

Misconduct is sufficiently comprehensive to include misfeasance as well as

malfeasance and is applied to the professional people, it include unprofessional
acts even though they are not inherently wrongful. The professional misconduct
may consist the fact in any conduct, which tends to bring reproach on the legal
profession or to alienate the favorable opinion which the public should entertain
concerning it. In state of Punjab v Ram Singh the Supreme Court held that the term
misconduct may involve moral turpitude, it must be improper or wrong behavior,
unlawful behavior, willful in character, a forbidden act, a transgression of
established and definite rule of action or code of conduct, but not mere error of
judgment, carelessness or negligence in performance of duty.

The Supreme Court has, in some of its decisions, elucidated on the concept of
‘misconduct’, and its application. In Sambhu Ram Yadav v. Hanuman Das Khatry,
a complaint was filed by the appellant against an advocate to the Bar Council of
Rajasthan, that while appearing in a suit as a counsel, he wrote a letter stating that
the concerned judge, before whom the suit is pending accepts bribes, and asked for
Rs. 10,000 to bribe and influence the judge to obtain a favorable order. The
Disciplinary Committee, holding that the advocate was guilty if “misconduct”,
stated that such an act made the advocate “totally unfit to be a lawyer.” The
Supreme Court, upholding the finding of the Rajasthan Bar Council held that the
legal profession is not a trade or business. Members belonging to the profession
have a particular duty to uphold the integrity of the profession and to discourage
corruption in order to ensure that justice is secured in a legal manner. The act of
the advocate was misconduct of the highest degree as it not only obstructed the
administration of justice, but eroded the reputation of the profession in the opinion
of the public.

Provisions in Advocates act, 1961

The advocates act 1961 is a comprehensive legislation that regulates the legal
practice and legal education in India. It envisages for the establishment of Bar
Council of India and State Bar Councils with various disciplinary committees to
deal with misconduct of the advocates. It also provides for the provisions relating
to the admission and enrolment of advocates and advocates right to practice.
Chapter V containing sections 35 to 44 deals with the conduct of the advocates. It
provides for punishment for advocates for professional and other misconduct and
disciplinary powers of the Bar council of India. In order to attract the application of
section 35 of the advocates act the misconduct need not be professional
misconduct alone. The expression used in the section is Professional or other
misconduct. So even conduct unconnected with the profession may account to a
misconduct as for example, conviction for a crime, though the crime was not
committed in the professional capacity. At the same time it is to be noted that a
mere conviction is not sufficient to find an advocate guilty of misconduct, the court
must look in to the nature of the act on which the conviction is based to decide
whether the advocate is or is not an unfit person to be removed from or to be
allowed to remain in the profession.

The Code of Conduct Prescribed For Advocate

Section 49 of the advocates act, 1961 empowers the Bar Council of India to frame
rules regulating standards of professional conduct. Accordingly various duties are
prescribed for the advocates some of them are highlighted below.

No advertising or soliciting work

It is against an advocate’s code of ethics to solicit or advertise work and amounts

to a misconduct on the part of the advocate. Both direct and indirect advertising is
prohibited. An advocate may not advertise his services through circulars,
advertisements, touts, personal communication or interviews not warranted by
personal relations. Similarly, the following forms of indirect advertising are
prohibited:

(i) by issuing circulars or election manifestos by a lawyer with his name,

profession and address printed on the manifestos, thereby appealing to the
members of the profession practising in the lower courts who are in a position to
recommend clients to counsel practising in the HC.

(ii) canvassing for votes by touring in the province or sending out his clerk or
agents to the various districts, which must necessarily mean directly approaching
advocates practicing in subordinate courts. Further, the signboard or nameplate
displayed by an advocate should be of reasonable size. It should not refer to details
of an affiliated by the advocate i.e. that he is or has been president or member of a
bar council or of any association, or he has been a Judge or an Advocate-General,
or that he specializes in a particular kind of work, or that he is or was associated
with any person or organization or with any particular cause or matter.

Not to demand fees for training

An advocate is restrained from demanding any fees for imparting training to enable
any person to qualify for enrolment.

Not use name/services for unauthorized practice

An advocate may not allow his professional services or his name to be associated
with, or be used for any unauthorized practice of law by any lay agency.

Not to enter appearance without consent of the advocate already engaged

An advocate is prohibited from entering appearance in a case where there is

already another advocate engaged for a party except with the consent of such
advocate. However if such consent is not produced, the advocate must state the
reasons for not producing it, and may appear subsequently, only with the
permission of the court.

Duty to opposite party

While conducting a case, a lawyer has a duty to be fair not only to his client but
also to the court, and to the opposite party. An advocate for a party must
communicate or negotiate with the other parties regarding the subject matter of
controversy, only through the opposite party’s advocate. If an advocate has made
any legitimate promises to the opposite party, he should fulfill the same, even if the
promise was not reduced to writing or enforceable under the rules of the court.

Duties of an advocate towards his client

The relationship between a lawyer and a client is highly fiduciary and it is the duty
of an advocate fearlessly to uphold the interests of the client by fair and honourable
means without regard to any unpleasant consequences to himself or any other
person.

Among the various duties of the advocates like, duties to client, court, public,
colleagues and self, selected points can be picked up and arranged according to the
due and relative importance and are called as ten commandments of advocates they
are;

a) Duties to client

1) Protection of the interest of the client

2) Proper estimation of the value of legal advices and services

b) Duties to court

1) Honesty and respect

2) Preparation of the case

c) Duties to Public

1) Service

2) Loyalty to law and justice

d) Duties to colleagues

1) Fellowship

2) Fairness

e) Duties to self

1) Systematic study

2) Prudence and diligence

The rules laid down by the Bar Council of India forms the code of conduct for
advocates and in broad sense any violation of such rules or code of conduct can be
termed as professional misconduct. The scope of the term has been still widened
by the Supreme Court in various decisions.

Instances of Misconduct
Legal Practioners act 1879 has not defined the word Misconduct. The word
Unprofessional conduct is used in the act. Even the Advocates Act 1961 has not
defined the term misconduct because of the wide scope and application of the term.
Hence to understand the instances of misconduct we have to rely on decided cases.
Some of the instances of Professional misconduct are as follows,

1) Dereliction of duty

2) Professional negligence

3) Misappropriation

4) Changing sides

5) Contempt of court and improper behavior before a magistrate

6) Furnishing false information

7) Giving improper advice

8) Misleading the clients in court

9) Non speaking the truth

10) Disowning allegiance to court

11) Moving application without informing that a similar application has been
rejected by another authority

12) Suggesting to bribe the court officials

13) Forcing the procecution witness not to tell the truth.

Contempt of Court As Misconduct

In the recent case of B. M. Verma v. Uttrakhand Regulatory Commission court

noted that, it was given the wide powers available with a Court exercising
contempt jurisdiction. In the case of Court of Its Own Motion v. State dealing with
the contempt proceedings involving two senior advocates, observed that ‘given the
wide powers available with a Court exercising contempt jurisdiction, it cannot
afford to be hypersensitive and therefore, a trivial misdemeanor would not warrant
contempt action. Circumspection is all the more necessary because as observed by
the SC in SC Bar Association v. Union of India the Court is in effect the jury, the
judge and the hangman; while in M.R. Parashar H. L. Sehgal it was observed that
the Court is also a prosecutor Anil Kumar Sarkar v. Hirak Ghosh, reiterates this.

In the most controversial and leading case of R.K. Ananad v. Registrar of Delhi
High Court, On 30th May, 2007 a TV news channel NDTV carried a report
relating to a sting operation. The report concerned itself with the role of a defence
lawyer and the Special Public Prosecutor in an ongoing Sessions trial in what is
commonly called the BMW case. On 31st May, 2007 a Division Bench of this
Court, on its own motion, registered a writ Petition and issued a direction to the
Registrar General to collect all materials that may be available in respect of the
telecast and also directed NDTV to preserve the original material including the
CD/video pertaining to the sting operation. The question for our consideration is
whether Mr. R.K. Anand and Mr. I.U. Khan, Senior Advocates and Mr. Sri
Bhagwan Sharma, Advocate have committed criminal contempt of Court or not. It
was observed that prima facie their acts and conduct were intended to subvert the
administration of justice in the pending BMW case and in particular to influence
the outcome of the pending judicial proceedings. Accordingly, in exercise of
powers conferred by Article 215 of the Constitution proceedings for contempt of
Court (as defined in Section 2(c) of the Contempt of Courts Act, 1971) were
initiated against Mr. Anand, Mr. Khan and Mr. Sri Bhagwan Sharma and they were
asked to show cause why they should not be punished accordingly. Court said that
Courts of law are structured in such a design as to evoke respect and reverence for
the majesty of law and justice. The machinery for dispensation of justice according
to law is operated by the court. Proceedings inside the courts are always expected
to be held in a dignified and orderly manner. The very sight of an advocate, who
was found guilty of contempt of court on the previous hour, standing in the court
and arguing a case or cross-examining a witness on the same day, unaffected by
the contemptuous behavior he hurled at the court, would erode the dignity of the
court and even corrode the majesty of it besides impairing the confidence of the
public in the efficacy of the institution of the courts. This necessitates vesting of
power with the HC to formulate rules for regulating the proceedings inside the
court including the conduct of advocates during such proceedings. That power
should not be confused with the right to practise law. Thus court held that there
may be ways in which conduct and actions of an advocate may pose a real and
imminent threat to the purity of court proceedings cardinal to any court’s
functioning, apart from constituting a substantive offence and contempt of court
and professional misconduct. In such a situation the court does not only have the
right but also the obligation to protect itself. Hence, to that end it can bar the
advocate from appearing before the courts for an appropriate period of time. In the
present case since the contents of the sting recordings were admitted and there was
no need for the proof of integrity and correctness of the electronic materials.
Finally the Supreme Court upheld High Court’s verdict making Anand guilty on
the same count. On the other hand, the Supreme Court let off I U Khan, who was
found guilty by the High Court.