Landmark Professional Ethics Cases Touch & Read

CASE: P.D. GUPTA V. RAM MURTI AND ANR. P.D. GUPTA V. RAM MURTI AND ANR.

CASE: JOHN D’SOUZA V. EDWARD ANI JOHN D’SOUZA V. EDWARD ANI

LC GOYAL V NAWAL KISHORE GOYAL V NAWAL KISHORE

V.P. KUMARAVELU VS THE BAR COUNCIL OF INDIA KUMARAVELU VS THE BAR COUNCIL OF INDIA

HIKMAT ALI KHAN VS ISHWAR PRASAD ALI KHAN VS ISHWAR PRASAD

PRAHLAD SARAN GUPTA V BAR COUNCIL OF INDIA SARAN GUPTA V BAR COUNCIL OF INDIA

PANDURANG DATTATRAYA KHANDEKAR VS BAR COUNCIL OF MAHARASHTRA, ... ON 20 OCTOBER,

1983 DATTATRAYA KHANDEKAR VS BAR COUNCIL OF MAHARASHTRA, ... ON 20 OCTOBER, 1983

D.S. DALAL VS STATE BANK OF INDIA AND ORS ON 18 MARCH, 1993 DALAL VS STATE BANK OF INDIA
AND ORS ON 18 MARCH, 1993

V. C. RANGADURAI VS D. GOPALAN AND ORS ON 4 OCTOBER, 1978 C. RANGADURAI VS D. GOPALAN

AND ORS ON 4 OCTOBER, 1978

DEVENDRA BHAI SHANKAR MEHTA VS RAMESHCHANDRA VITHALDAS SHETH BHAI SHANKAR MEHTA
VS RAMESHCHANDRA VITHALDAS SHETH

M. VEERABHADRA RAO VS TEK CHAND ON 18 OCTOBER, 1984 BAR COUNCIL OF VEERABHADRA RAO
VS TEK CHAND ON 18 OCTOBER, 1984 BAR COUNCIL OF

RAM BHAROSEY AGARWAL VS HAR SWARUP MAHESHWARI ON 27 APRIL, 1976 BHAROSEY AGARWAL
VS HAR SWARUP MAHESHWARI ON 27 APRIL, 1976

NANDLAL KHODIDAS BAROT VS BAR COUNCIL OF GUJARAT AND ORS KHODIDAS BAROT VS BAR
COUNCIL OF GUJARAT AND ORS

CHANDRA SHEKHAR SONI VS BAR COUNCIL OF RAJASTHAN AND ORS SHEKHAR SONI VS BAR
COUNCIL OF RAJASTHAN AND ORS

L.D. JAISINGHANI VS NARAINDAS N. PUNJABI ON 27 NOVEMBER, 1975 JAISINGHANI VS NARAINDAS

N. PUNJABI ON 27 NOVEMBER, 1975

1. 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.

2. 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.

3. LC Goyal v Nawal Kishore

This appeal filed under Section 38 of the Advocates Act, 1961 (hereinafter referred to as “the
Act”) is directed against the order of the Disciplinary Committee of the Bar Council of India
dated 24-6-1983 whereby the appellant has been suspended from practice for a period of six
months. Having considered the matter in the light of the submissions of the appellant, we are
of the view that no fault can be found with the conclusion arrived at by the Disciplinary
Committee of the Bar Council of India. We, therefore, do not find any merit in the appeal and
the same is accordingly dismissed. No order as to costs.

4. V.P. Kumaravelu vs The Bar Council Of India

These appeals arise from a common order dated 15.5.1986 passed by the Disciplinary
Committee of the Bar Council of India in D.C.I.T. Case Nos.48 and 49 of 1985. These two
cases pertain to the appellant and were transferred to the appellant and were transferred to the
Disciplinary Committee of the Bar Council of India under the provisions of Section 36B(1) of
the Advocates Act, 1961 as the Disciplinary Committee of the Bar Council of Tamil Nadu
could not dispose of these cases within the prescribed period of one year. On or about 21st of
October, 1978, the appellant was appointed as City Government Pleader in all the Civil
Courts constituted in Madras other than the High Court of Madras. The work was spread over
several courts in Madras and the appellant as the city Government Pleader was required to
conduct all the civil matters pending in the civil courts of Madras except the High Court, on
behalf of the Government and also to give his opinion on these matters from time to time
when required. The appellant was allowed the assistance of juniors who were not appointed
by the Government. The respondent was provided with staff.

The In the present case, there is failure on the part of the appellant to discharge his duties
towards his client. This failure, however, is not deliberate. It is on account of heavy pressure
of work coupled with lack of diligence on the part of his staff as well as on the part of his
client in not sending a responsible person with papers to the office of the Government
pleader. However, while the appellant cannot be held responsible for his client's failure to
attend the office, the appellant cannot shift the blame entirely on his staff. As the head of the
office it was his responsibility to make sure that the work is properly attended to and the staff
performs its functions properly and diligently. The appellant has, therefore, rightly been held
guilty of negligence. However, in the absence of any moral turpitude or delinquency on his
part, we cannot sustain the finding of the Bar council of India that his conduct in the facts and
circumstances of this case amounts to professional misconduct. In fact the various mitigating
circumstances have been noted by the Bar council of India itself. The negligence on the part
of the appellant in these circumstances cannot be construed as professional misconduct. The
appeals are, therefore, allowed. There will, however, be no order as to costs.

5. Hikmat Ali Khan vs Ishwar Prasad

Ishwar Prasad Arya, respondent No.1, was registered as an advocate with the Bar Council of
Uttar Pradesh and was practising at Badaun. An incident took place on May 18,1971 during
lunch interval at about 1.55 p.m. in which respondent No.1 assaulted his opponent Radhey
Shyam in the court room of Munsif/Magistrate, Bisauli at Badaun with a knife. A pistal shot
is also said to have been fired by him at the time of incident. After investigation he was
prosecuted for offencesunder Section 307 of the Indian Penal Code and section 25 of the
Arms ActFor the reasons aforementioned the appeal id allowed the impugned order dated
September 8 1985 passed by the Disciplinary committee of the Bar council of India in D.C.
appeals nos. 17 and 17-A of 1984 passed by the Disciplinary committee of the Bar council of
U.P. in D.C. case No. 40 of 1983 is upheld with the modification that instead of his being
debarred from practising as an advocate for a period of three year the name of respondent no.
1 be removed from the state roll of advocates No. order as to costs.

6.Prahlad Saran Gupta V Bar council of India

The Disciplinary committee was in error in holding the appellant guilty of professional
misconduct for drafting the notice under section 80 CPC, that was served on the Union of
India on behalf of M/s. Agarwal Traders on the ground that document No. 16, the draft of the
said notice, was in the hand writing of the appellant/The Disciplinary Commit-tee had arrived
at this conclusion by a comparison of the handwriting of the appellant with the handwriting in
document No. 16. It was not advisable for the Disciplinary committee to base its conclusion
purely on the basis of its own comparison of the handwriting, specially when the matter
related to a charge of professional misconduct which is quasi-criminal in nature requiring
proof beyond reasonable doubt. Having rejected the requestfor sending the document to a
handwriting expert for examination on the view that the allegation was not contained in the
complaint as originally filed, the Disciplinary committee was in error in going into the merits
of the said allegation and further more in comparing the writing in the document with the
handwriting of the appellant-advocate without the assistance of the opinion of a handwriting
expert and in coming to the conclusion that the said document was in the handwriting of the
appellant.The action of the appellant in not returning the amount either to the decree-holder
or to the judgment-debtor and retaining the same with himself till May 2,1978 when he
deposited it in the court, was not in consonance with the standards of professional ethics
expected from a Senior member of the profession. Therefore, the appellant had been rightly
held guilty of professional misconduct for having wrongfully retained Rs. 1500 which had
been kept with him in connection with the settlement in the execution proceedings. The ends
of justice would be met if the punishment of reprimand is imposed on the appellant for
committing the misconduct of wrongfully retaining the amount

7. Pandurang Dattatraya Khandekar vs Bar Council Of Maharashtra, ... on 20 October,

1983

The disciplinary proceedings out of which this appeal Under Section 38 of the Advocates
Act, 1961 ('Act' for short) has arisen were initiated on a complaint made by a group of 12
advocates practising in the two courts of Sub-Divisional Magistrates in the Collectorate of
Poona alleging various acts of professional misconduct against the appellant P.D. Khandekar
and one A.N. Agavane. The proceedings stood transferred to the Bar Council of India Under
Section 36B of the Act. The Disciplinary Committee of the Bar Council of India by its order
dated April 23,1976 held both the appellant and A.N. Agavane guilty of professional
misconduct and directed that the appellant be suspended for a period of four months from
June 1, 1976 and Agavane for a period of two months therefrom. This Court by its order
dated September 24, 1976 admitted the appeal and stayed the operation of the suspension of
order.In the result, the appeal partly succeeds and is allowed. The order of the Disciplinary
Committee of the Bar Council of India holding the appellant and A.N. Agavane guilty of
professional misconduct is set aside. The proceedings drawn against them under Sub-section
(1) of Section 35 of the Advocates Act, 1961 are dropped. We hope and trust that they would
not by their conduct or behaviour prove themselves to be unworthy to remain as members of
the great profession to which they belong.

8. D.S. Dalal vs State Bank Of India And Ors on 18 March, 1993

The State Bank of India lodged a complaint before the Bar Council of Delhi on September 4,
1978. It was alleged in the complaint that the appellant along with two other advocates was
practising under the name and style of "M/s Singh and Company" a firm of advocates and
solicitors having their office at 2670, Subzi Mandi, Delhi. SC had given their thoughtful
consideration to the evidence on the record against the appellant. SC has seen no ground to
interfere with the order of the Bar Council of India. SC agreed with the reasoning and the
conclusions reached therein. SC, therefore, dismissed the appeal. No costs.

9. V. C. Rangadurai vs D. Gopalan And Ors on 4 October, 1978

The appellant was found guilty of gross professional misconduct by the Disciplinary
Committee II of the State Bar Council, Tamil Nadu and was therefore, debarred from practice
as an Advocate for a period of six years. In appeal, the Bar Council of India upheld the said
findings but reduced the period of suspension to one year. Dismissing the appeal, the Court
Held that Punishment has a functional duality-deterrenceand correction. But conventional
penalties have their punitive limitations and flaws, viewed from the reformatory angle. A
therapeutic touch, a correctional twist, and a locus penitentiae, may have rehabilitative impact
if onlyCourts may experiment unorthodoxly but within the parameters of the law.

10. Devendra Bhai Shankar Mehta vs Rameshchandra Vithaldas Sheth

The appellant was an Advocate practising in Bombay.Respondent No.1 (the complainant)

made a complaint to the Bar Council of Maharashtra alleging professional misconduct against
the appellant. His case was that he was a proprietor of a firm engaged in a business of
manufacturing. Allegations of defrauding and cheating aspirantloaners-Proceedings before
State Bar Council and Bar Council of India-Findings of Disciplinary Committee that
concerned advocate and financier being parties to racket defrauded aspirant loanee in
receiving large sum of money or pretext of legal expenses and other incidental costs for
advancing proposed loan.SC held that concerned advocate has not only misused the trust
reposed in him but has played an active part in defrauding or cheating the complainant who
on the basis of the false representation of the concerned advocate had to part with substantial
amount to his serious loss and prejudice. In such facts and circumstances of the case, we do
not find any reason to reduce the punishment imposed on the appellant. This appeal,
therefore, fails and is dismissed with costs.

11. M. Veerabhadra Rao vs Tek Chand on 18 October, 1984 Bar Council of India Rules
1975, Part VI, Chapter II- Standards of professional conduct and etiquette-Read

withRules 34 and 40 of the Civil Rules of Practice framed byAndhra Pradesh High Court-
Advocate be attested affidavit in absence of deponent known to the advocate-Affidavit found
to be forged and led to the commission of fraud and damage to deponent-Whether constitutes
professional misconduct.

HELD: Both the fact finding authorities concurrently recorded the finding that the respondent
did not put his signature on the affidavit, Ex. A-1 in the presence of the appellant and yet the
appellant by contributing his attestation to the affidavit made a declaration that the signature
was of the appellant made in his presence. We consider this unambiguous finding wholly
incontrovertible in the facts of this case that the appellant never appeared before the
respondent either on October 31, 1972 or November 1, 1972.

12. Ram Bharosey Agarwal vs Har Swarup Maheshwari on 27 April, 1976

Appellant Ram Bharosey Agarwal was practising as an advocate in Bulandshahr, Uttar

Pradesh He was engaged by respondent Har Swarup Maheshwari, on behalf of his daughter
Smt.Munni Devi, to pursue her application against her husband Jai Narain under Section 468
Gr. P.O. in the Court of Sub-Divisional Magistrate, Bulandshahr. The case was decided in
favour of Smt. Munni Devi on September 5, 1963, and a maintenance allowance was granted
to her. When the order was put into execution, Har Swarup Maheshwari engaged another
lawyer to prosecute the execution application. In those proceedings the property of Jai Narain
was attached. His father claimed that the attached property belonged to him, and his
application to that effect was alleged to have been filed by the appellant. The first charge
against the appellant was that he was guilty of professional misconduct in accepting a brief
on b half of Jai Narain's father. Jai Narain filed an application for reconsideration of the order
of maintenance, and examined three witnesses. Smt. Munni Devi's father Har Swarup
Maheshwari instituted a case for defamation against those three witnesses and Jai Narain.
Appellant, Ram Bharosey Agarwal was engaged by the accused in those proceedings. The
second allegation against the appellant therefore was that he was guilty of misconduct in
appearing on behalf of the accused in the defamation case. The third allegation was that the
appellant wrote a letter dated August 14, 1967 to Jagdish Narain Agarwal, an advocate of the
Allahabad High Court, to have an appeal which had gone upto the Allahabad High Court
dismissed even though there were no such instructions from his client and the action was
detrimental to the interest of the client.SC were constrained to allow the appeal and to set
aside the appellate order dated December 10, 1974. In the circumstances of the case, SC
would direct that the patties shall pay and bear their own costs.

13. Nandlal Khodidas Barot vs Bar Council Of Gujarat And Ors

This is an appeal under Section 38 of the Advocates Act, 1961. In a proceeding transferred to
it under Section 36B of the Act, the Bar Council of India by its order dated 17 April, 1977
found that the appellant was guilty of professional misconduct and suspended him from
practice for a period of one year. The complaint on which the proceeding was initiated was
filed in the Gujarat Bar Council on 9 October, 1971.The appeal is allowed and the order of
the Disciplinary Committee of the Bar Council of India suspending tie appellant from
practice for one year is set aside. There will be no order as to Costs.

14. Chandra Shekhar Soni vs Bar Council Of Rajasthan And Ors

This appeal under Section 38 of the Advocates Act, 1961 is directed against an order of the
Disciplinary Committee of the Bar Council of India dated January 7, 1977 upholding the
order of the Disciplinary Committee of the State Bar Council of Rajasthan, Jodhpur dated
July 21, 1974 by which the appellant has been held guilty of professional misconduct and
suspended from practice for a period of three years under Section 35(c) of the Act. Subject to
this modification, the appeal is dismissed with no order as to costs

15. L.D. Jaisinghani vs Naraindas N. Punjabi on 27 November, 1975

The appellant is an Advocate against whom a complaint was made on 25th May, 1971 before
the Bar Council of Maharashtra by the Respondent Naraindas M. Punjabi. As the complaint
was not disposed of within six months of its receipt by the State Bar Council it was
transferred to the Disciplinary committee of the Bar Council of India under Section 36B of
the Advocates Act, 1961 for disposal.In the circumstances of this case, SC think that the
appellant is entitled to the benefit of doubt. SC, then fore, allow this appeal and set aside the
order disbarring the appellant who, SC hope, has learnt now to conduct himself in a more
satisfactory manner in his dealings with his clients. SC make no order as to costs

1. Noratanmal Chaurasia vs. M.R. Murli (2004) 5 SCC 689– 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.

2. Narain Pandey vs. Pannalal Pandey (2013) 11 SCC 435 – An advocate who is found guilty of
having filed vakalatnamas without authority and then filing false and fictitious compromises
on behalf of the client without any authority deserves punishment proportionate to the
degree of misconduct. Such punishment must meet two objectives- deterrence and
correction. The Court referred to the Preamble of the BCI Rules- Chapter II while adjudging
the misconduct.
3. Shambhuram Yadav vs. Hanumandas Khatri AIR 2001 SC 2509- The lawyer suggested that
his client give bribe to the judge to get the suit decided in his favour. The Supreme Court held
the lawyer guilty of professional misconduct. (Violation of Rule 3 and 4 of BCI Rules- –
Chapter II)
4. Bar Council of Andhra Pradesh vs. Kurapati Satyanarayana AIR 2003 SC 178– Lawyer
misappropriated his client’s money. BCI acquitted him on the ground that there was no
intention. Supreme Court held this decision of BCI to be “unfounded and perverse” and
lacking the serious thought which was required to be given to the disciplinary committee of
the BCI in the discharge of quasi-judicial functions while probing into such grave instances.
(Rule 23 and 25 of the BCI Rules- Chapter II)
5. Harish Chandra Tiwari vs. Baiju 2002 (2) SCC 67- Misappropriation of client’s money is a
grave misconduct to be committed by a legal practitioner, and must be punished accordingly
under the Advocates Act. (Rule 23 and 25 of the BCI Rules- Chapter II)
6. Smt. Siya Bai vs. Sita Ram BCI Tr. Case No. 8/1987– The advocate withdrew the decretal
amounts paid and did not make the payment to the client, in violation of Rule 27 of the BCI
Rules on Professional Ethics. The Disciplinary Committee of the Bar Council of India ordered
the advocate to refund the money to the complainant along with the 10% interest per
annum and also ordered suspension of advocate for a period of one year.
7. In Re: An Advocate vs. Unknown AIR 1961 Ker 209- It is the imperative duty of the counsel
on receipt of the client’s decretal money, to inform the client thereof and pay him without
the amount under receipt without any delay. The Kerala High Court suspended the
respondent for a period of six months, for non-fulfillment of this duty under Rule 27 of the
BCI Rules- Chapter II.
8. Bar Council of Maharashtra vs. V. Dabholkar and others AIR 1976 SC 242- The Bar Council
functions in a dual capacity, one as the prosecutor through its Executive Committee and the
other quasi-judicial performed through its Disciplinary Committee. Hence, being the
prosecutor, the State Bar Council would be an ‘aggrieved person’ and therefore, the appeal
under section 38 of the Advocates Act, 1961 would be maintainable.
9. PD Khandekar vs Bar Council of Maharashtra 1984 SCR (1) 414- It is professionally improper
for a member of the bar to prepare false documents, or to draw pleadings knowing that the
 allegations made are untrue to his knowledge. Thus, giving of improper legal advice may
amount to professional misconduct, which may not be so by the giving of wrong legal advice.
(Violation of Rule 11 of the BCI Rules-Chapter II)
10. Hikmat Ali Khan vs Ishwar Prasad Arya AIR 1997 SC 864- The defendant assaulted his
opponent with a knife. Prosecuted under Section 307 of IPC and Section 25 of the Arms Act.
Conviction suspended on basis of a letter from the governor. Supreme Court held that his
conduct was such that his name should be removed from the state role of advocates as he
was unworthy of remaining in the profession after the conviction. (Rule 7A of Chapter III of
BCI Rules)
11. NG Dastane vs. Shrikant S. Shivde AIR 2001 SC 2028- Advocates kept seeking adjournments,
and thus harassing the witnesses for the purpose of cross-examination. Guilty of misconduct.
Court also analysed Section 35 of the Act and held that the requirement of “reason to
believe” cannot be converted into a formalised procedural road block, it being essentially a
barrier against frivolous enquiries. Violation of Rule 11 of the BCI Rules- Chapter II.
12. In Re: Tulsidas Amanmal Karani vs. Unknown AIR 1941 Bom 228 – Section 35 envisages not
only ‘professional misconduct’ but also ‘other misconducts’, not defined in the Act. In case
relating to Indian Bar Councils Act 1926 the Court held that “any conduct which in any way
renders a man unfit for the exercise of his profession or is ‘likely to hamper or embarrass the
administration of justice by this Court or any of the Courts subordinate thereto’ may be
considered to be misconduct calling for disciplinary action.”
13. Central Bureau of Hyderabad vs. K Narayan Rao (2012) 9 SCC 512 – For liability, there has to
be moral delinquency. Mere negligence sans moral delinquency will not suffice. If negligence
is culpable nature, then it may lead to prof misconduct but not necessarily criminal liability.
14. Harish Uppal vs. Union of India (2003) 2 SCC 45- Lawyers have no right to strike, i.e. to
abstain from appearing in the court in cases in which they hold vakalat for the parties, even if
it is in response to or in compliance with a decision of any association or body of lawyers.
15. Byram Pestonji Gariwal vs. Union Bank of India (1992) 1 SCC 31 – Supreme Court discussed
the role of the counsel in compromise of suit. It will be prudent for counsel not to act on
implied authority (given by vakalatnama) except when warranted by the necessity of
circumstances demanding immediate adjustment of suit by agreement or compromise and
the signature of the party cannot be obtained without undue delay
16. Rajendra Pai vs. Alex Fernandes AIR 2002 SC 1808 – The lawyer in a class action suit settled
contingent fee depending on the quantum of compensation awarded to the claimant; and
that he identified some claimants in opening a bank account wherein the cheque for the
awarded amount of compensation was lodged and then the amount withdrawn which
identification was later on found to be false. Held guilty of misconduct (as in violation of Rule
20 of the BCI Rules of Conduct) and suspended for seven years.
17. R.D. Saxena vs. Balram Prasad Sharma (2000) 7 SCC 264 – The advocate does not have a lien
for his fees on the litigation papers entrusted to him by his client.
18. Virendra Kumar Gupta vs. Anil Kumar Jain –The lawyer in connivance with the other party,
deliberately and intentionally did not appear in the execution proceedings of his client,
which were therefore dismissed in default. The lawyer did not serve the interest of his client
and in fact acted against his interest. Guilty of misconduct under Rule 5 of the BCI Rules-
Chapter II.
 19. Joginder Singh vs BCI AIR 1975 Delhi 192 – Advocate had concealed facts about his
conviction under Section 473 of IPC and the fact that he was out on bail. Given the high
standards expected of those in the legal profession, it would definitely be a
fraud/misrepresentation if the concerned advocate does not disclose the fact of his previous
conviction, especially those involving moral turpitude as they help ascertain the character of
a man. (Violation of Rule 43 of the BCI Rules- Chapter II)
20. Surendra Nath Mittal vs. Daya Nand Swaroop BCI Tr. Case No. 63 / 1987. – The advocate
made manipulation in the operative part of the judgement and decree by adding the words
“mai sood” i.e. including interest. Disciplinary committee held him guilty of professional
misconduct. (Violation of Rule 1 and 2 of the BCI Rules- Chapter II)
21. Vikramaditya vs. Smt. Jamila Khatoon D.C. Appeal No. 21/1996 – The obtaining of the
signature by the advocate on blank vakalatnama and blank watermarked papers for the
purpose of defrauding the client’s amounts to the professional misconduct under Rule 15 of
the BCI Rules- Chapter II.
22. Allahabad Bank vs. Girish Prasad Verma BCI Tr. Case No. 49/1993 – The advocate did not
file, rather, misappropriated the sum paid to him by the client for the purpose of court fees
(in violation of Rule 23 of the BCI Rules- Chapter II). U.P Bar Council disciplinary committee
held him guilty of professional misconduct.
23. Babu Lal Jain v. Subhash Jain BCI Tr. Case No. 115 / 1996- The complainant alleged that the
respondent advocate was a practising lawyer as well as was working as an editor, printer, and
publisher of a weekly paper. 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 taken by the disciplinary committee
as professional misconduct.
24. John D’souza v. Edward Ani 1994 SCC (2) 64 The lawyer refused to return the will he
executed, in spite of two letters demanding to hand over the will. The Supreme Court held
that the advocate has committed breach of his professional duty and found him guilty of
profession misconduct. (Violation of Rule 15 of the BCI Rules- Chapter II)
25. V. C. Rangadurai vs D. Gopalan 1979 SCR (1) 1054- The lawyer failed to disclose the
conflicting interests to client, and also betrayed the trust reposed in him by the client, hence
violating Rule 24 of the BCI Rules of Professional Ethics. The lawyer was suspended for one
year.

Professional Ethics Quiz 1

1.) A applied for a government job. A certain percentage of seats had been reserved for a
certain backward class. A, who was keen on getting the job, and did not belong to the
reserved class, submitted a false certificate in order to secure a position. Would A be able to
enrol as an advocate?

Introduction

Misconduct is the antonym of conduct. Conduct means behavior with good manners
and treatment shown towards others. Misconduct represents misbehavior.
Misconduct as explained in the Dictionary is ‘improper conduct’.
The term ‘misconduct’ has been defined in Black’s Dictionary as ‘a transgression of
some established and defined rule of action, a forbidden act, a dereliction of duty,
unlawful behavior, willful in character, improper or wrong behavior’. Its synonyms are
misdemeanor, impropriety, mismanagement, offence, but not negligence or
carelessness.

SURENDRA NATH MITTAL v. DAYA NAND SWAROOP (BCI Tr. Case No. 63/1987)

FACTS: In this case, the complaint was addressed to the Chief Justice of Allahabad
High Court by Surendra Nath Mittal against Daya Nand Swaroop alleging that Daya
Nand Swaroop and his father Bhagwat Swaroop filed a suit against the complainant
for the recovery of certain amount for use and occupation of an accommodation in
the tenancy of the complainant. Sri Bhagwat Swaroop died and his heirs were
brought on record.

ISSUE: The suit was declared ex parte and a decree was drawn. Thereafter, Daya
Nand Swaroop made interpolation in the judgment and decree by addition of the
word “mai sood” (i.e., including interest) either in his own handwriting or otherwise
caused to be added these two words. These words were added in the operative
portion of the judgment and also in decree are in one and the same handwriting and
it is not in the handwriting of the Presiding Officer or in the handwriting of the clerk
concerned.

The respondent advocate denied the allegation and contended that he had not
committed any offence.

HELD: The Disciplinary Committee found the advocate guilty. The Committee held
that it was the respondent who had added the words subsequently and therefore he
was guilty of getting manipulated or manipulation, the Court by record by adding the
words “mai sood” in the judgment and decree.

The Committee ordered for his suspension for one year. The respondent was
ordered to pay a cost of Rs. 3,000 to the complainant and in case he failed to pay
the cost within two months, he would undergo suspension for an additional period of
one year. The cost was to be deposited in the Bar Council of India to be remitted to
the complainant within a period of two months from the date of receipt of the
judgment.

SMT. FARIDA CHAUDHARY v. DR. ACHYUT KUMAR THAKURIA (BCI Tr. Case No.
1/1998)

It is a case transferred to the Bar Council of India from the Bar Council of Assam.
The complainant was an employee of Steel Authority of India, Guwahati. She was
residing at Guwahati. The respondent was her neighbor. The respondent advocate
filed false cases against her and also wrote a letter to her employers to harm her
reputation in her department. In addition, he wrote letters to the complainant
containing obscene and vulgar language with remarks, sketches and pictures in his
own handwriting.
The Committee held that the respondent advocate was exceeding his power to write
to an employer regarding the conduct of a person. The respondent has written the
letter on 8-10-1990 to the employer of the complainant that the complainant was
accused in police station case no. 291/90 under sections 504 and 506 of the Indian
Penal Code and she surrendered to the Chief Judicial Magistrate, Guwahati on 22-9-
1990. The letter was written on 8-10-1990 while the date of hearing of the case
against the complainant was fixed on 9-10-1990 and on this date the complainant
and her husband were discharged. The respondent was held liable for writing this
letter.

Besides, he was found to be the author of the obscene letters. The conduct of the
respondent advocate was unbecoming of the lawyer. He had, thus had and rendered
himself liable to the disciplinary action of punitive nature. He had failed to discharge
his duties as a responsible person of the society. The respondent advocate was held
guilty of professional misconduct.

He was suspended by the Committee from practice for a period of four months. The
Committee imposed a cost of 10,000 rupees over him to be paid to the complainant
and in case of failure in payment within two months; he was to undergo suspension
from practice for an additional period of one year. As per order of the Committee the
cost was to be deposited by the respondent advocate with the Bar Council of Assam
under intimation to the Bar Council of India so that the amount could be collected by
the complainant at Guwahati.

PRATAP NARAIN v. Y.P.RAHEJA (BCI Tr. Case No. 40/1993)

FACTS & ISSUE: In this case, Shri Pratap Narain filed a complaint before Delhi Bar
Council against Shri Y.P. Raheja, advocate. The respondent was an advocate acting
for the complainant in a case. It was alleged that respondent handed over him a
forged stay order while no stay order was passed by the Court in the case. After
examining all the evidence and relevant facts the Disciplinary Committee of the BCI
came to the conclusion that the respondent advocate himself handed over him the
forged stay order which was not passed by the Court. The respondent advocate
pleaded that the forged stay order was handed over to the complainant by his clerk.

The Committee opined that if the clerk had done so it was his duty to inform
regarding the same. However, the Committee came to the conclusion that the
respondent himself handed over the forged stay order to the complainant and held
him guilty of handling over the forged stay order which was not passed by the Court.
The complainant was made to believe that the said order was passed by the Court
and he came to know the fraud played upon him through another advocate engaged
by him.

The respondent had admitted that he gave assurance to the complainant that “he will
see to it that nothing happens to him in the police station”. The Committee held that
from the assurance made by the respondent in his reply, it was clear that he was
responsible for handing over the forged stay order to the complainant.

HELD: The Committee after examining the facts, evidence, etc., held that the
respondent was guilty of professional misconduct of serious nature. He has 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. The Committee made
it clear that no lesser than the aforesaid punishment could be imposed as the
professional misconduct was of a serious nature.

VIKRAMADITYA v. SMT. JAMILA KHATOON (D.C. Appeal No.21/1996)

It is an appeal against the decision of the Disciplinary Committee the U.P. Bar
Council. By the said order of the Disciplinary Committee of the Bar Council of U.P.
suspended the advocate for a period of five years. The Disciplinary Committee of the
Bar Council of India dismissed the appeal and held the said order right, although it
opined that more severe punishment could be imposed.

The appellant advocate got the signature of the complainant on the blank
vakalatnama and blanked watermarked papers. The complainant handed over to
him, his counsel, the original sale-deed for mutation. The appellant did not file the
mutation suit. He filed a suit on behalf of his father, Mr. Jhoolan Yadav against Smt.
Jamila Khatoon for the declaration of the aforesaid sale deed in the favor of Smt.
Jamila Khatoon benami transaction and the real owner was his father, Jhoolan
Yadav. He misused the vakalatnama and blank paper signed by the complainant and
filed a compromise and obtained a compromise decree in favor of his father. The
original sale-deed handed over to him by the complainant was also misused.

The Disciplinary Committee found that the appellant advocate was acting as an
advocate of the complainant from an earlier point of view. It was found that he was
the counsel, in the preparation and execution of the sale-deed in the favor of the
complainant which was executed by Shri Ram Dhani, the owner of the land. It was
found that the stamp paper for the aforesaid sale-deed was purchased through the
appellant advocate. Consequently, the statement of the appellant advocate that he
was not involved in the sale-deed was found by the Disciplinary Committee totally
incorrect.

HELD: The Disciplinary Committee held that Jamila Khatoon, handed over the blank
papers and vakalatnama for the purpose of mutation and later on these documents
were misutilised for getting the land transferred in the favor of his own father. This
was a serious misconduct. The complainant’s illiteracy was exploited and she was
defrauded by the appellant advocate.

Thus, the Disciplinary Committee of the BCI held that the appellant advocate was
guilty of professional misconduct of serious nature and he was rightly punished by
the Disciplinary Committee of the Bar Council of U.P. by suspension from practice
for a period of five years, though more serious punishment could be imposed upon
him.

S.K. NAGAR v. V.P. JAIN (D.C. Appeal No. 14/1997)

This is an appeal to the BCI against the decision of the Bar Council of Rajasthan.
The complainant had alleged that he had engaged Shri S.K.Nagar, an advocate to
file a complaint against certain persons for restoration of possession of the room and
articles lying therein. They were in occupation of the room as tenants in the house of
the complainant situated at Jawahar Nagar.

Requisite fees were paid to the respondent who gave the complainant assurance
that the case was being processed and the aforesaid persons had expressed their
willingness to hand over the possession of the house and needed some time for it
that nothing emerged and the respondent informed him that the said persons had not
appeared in the Court and had not delivered vacant possession ordered by the
Court.

He further informed the complainant that a warrant of arrest has been issued by the
Court and he charged Rs 500 for the expenses. The respondent told the complainant
that a warrant of attachment had been ordered by the Court against the aforesaid
persons and got 1000 rupees from the complainant for depositing in Court for issue
of warrant. The respondent also informed him of the date of hearing.

HELD: The respondent advocate, thus gave false information and prepared false
and fabricated documents to convince client about pendency of case while no case
was filed in the Court. He was thus held guilty of professional misconduct. The
Disciplinary Committee of the Bar Council of Rajasthan imposed a punishment of
two years of suspension from practice. The Disciplinary Committee of BCI in appeal,
enhanced the punishment.

Babul al Jain v. Subhash Jain

The complainant was an advocate. He alleged that the respondent advocate was
practicing lawyer as well as was working as an editor, printer and publisher of a
weekly called “Aj ki Janta.” Three charges were framed against him.

First, at the time of his registration as advocate he did not disclose that he was
owner, publisher, printer and editor of a weekly.

Second,even after registration as an advocate he used to work as publisher, printer

and editor of the aforesaid weekly.

Third, the charge against him was that he was personally engaged in other business.

The disciplinary committee of the BCI held that the first charge was found to have
been proved and it would take an action under section 26 of the Advocates act for
removing his name from roll under 35 of the said Act. As regards the second charge
as publisher only for legal publication or even for knowing legal publication.

As per Rule 51 of the BCI, an advocate may review parliamentary bills for a
remuneration, edit legal text books at a salary, do press-vetting for newspapers
coach pupils for legal examination, set and examine question papers and subject to
the Rules against advertising and full time employment engage in broadcasting
journalism lecturing and teaching subjects, both legal and non-legal.

The committee has observed that by journalism what is meant is either writing for
newspapers or editing for such newspapers. It does not include printing and
publishing of the newspaper which is a business itself. Printing and Publishing of the
weekly was taken as breach of the Rules of the BCI.

The disciplinary committee held him guilty of professional misconduct under section
35 of the Advocates Act and the respondent advocate was suspended from practice
for the period of one year.

Shambhu Ram Yadav v. Hanuman Das Khatry,

In this case the SC made clear that writing a letter to his client to send money to
bribe the judge is a serious misconduct.

In this case a complaint was filed by the appellant against respondent-advocate

before the Bar Council of Rajasthan was referred to the disciplinary committee
constituted by the State Bar Council. The complaint was that the respondent while
appearing as a counsel in a suit pending in a civil court wrote a letter to Mahant
Rajgiri that the concerned judge accepts a bribe and if he sends money the order will
be in his favour.

The state bar council after looking at all the aspects came to the conclusion that the
respondent was guilty of professional misconduct and suspended him from practice
for a period of two years. The respondent challenged his order before the disciplinary
committee of BCI. The committee enhanced the punishment and directed that the
name of respondent be struck off from the Roll of advocates and thus debarring him
permanently from practice

After that respondent filed a review petition and the court held that the earlier order
had taken into consideration and considering the nature of misconduct, penalty of
permanent debarment had been imposed on the respondent which, without any valid
ground, has been modified in exercise of power of review. It is the duty of the Bar
councils to ensure that the lawyers adhere to the required standards and on failure,
to take appropriate action against them. Of course, the punishment has to be
commensurate with the gravity of the misconduct.

The passed in review was set aside and the original order of the Disciplinary
Committee of the Bar Council of India was restored.

In the case of J.N. Gupta v. D.C. Singhania & J.K. Gupta

The respondent advocates had issued two advertisements in a newspaper; the first
indicating a change of address on account of fire in the building where they were
practicing, and the second time for shifting back to the building where their old office
was located.

Subsequently, they also published their name and address in the International Bar
Directory under the headings “Singhania & Company”, “Firms Major Cases” and
“Representative Clients”.

The Court held that there was no violation of the rule against advertisement with
respect to publication in the newspaper as the same was made on account of the
fire, which required urgent notice of change in address to be given to existing
clients.

With regard to the publication in the International Bar Directory, it was held that
publication in any manner, either in National or International Bar Directory would not
constitute a violation of Rule 36 if it is done with the purpose of giving information of
address or telephone numbers of advocates.

However, in the instant case, it was found that the publication was made to give
publicity to the fact that the law firm had dealt with important cases and had eminent
clients. Hence, was being used to advertise the firm itself.

Conclusion

The advocates play a significant role in the judicial system. One relies on them
completely by setting their complete trust. It is important for an advocate to discharge
its responsibilities in a precise and efficient manner. Being in the legal profession
and an officer of the court, an advocate is required to maintain high standards and
uphold the dignity of the judicial office. Any misconduct of an advocate shall not be
tolerable as this shall affect the trust and attitude of the people towards the judicial
environment.

In order to ensure that such irresponsible and irrational behavior does not go
unpunished a disciplinary committee has been set up and given powers to conduct
such matters involving fraud, misconduct and cheating committed by an advocate
towards his own client and others. In the last ten years, the Bar Councils have had
an onerous(heavy) task to perform. The members of the legal profession and the
public look forward to the Bar Councils for the discharge of their functions and
obligations so that justice can be served to all.

Professional misconduct in the legal profession – a critical

analysis
Introduction

By all means, the legal profession is intended to be divine or sacred. Every profession has a
set of standards for professional conduct that members of that profession must uphold.
However, there is also the reality that professional misconduct occurs frequently in both
advocacy work and other professions.

In layman’s words, it refers to various actions taken by individuals that appear to be

inconsistent with professional ethics and unsuited for the profession. Black’s Dictionary gives
a precise definition of the phrase as the violation of some established and unambiguous rule
of action, a prohibited act, a failure to perform a duty, unlawful behaviour, and improper or
wrong behaviour[1].

The Advocates Act, 1961 as well Indian Bar Council are silent in providing an 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 of the profession come under a clout on account of acts of omission and
commission by any member of the profession.[2]

Advocates Act

The provisions of Section 35 of the Advocates Act, which are as follows, address
professional misconduct by Indian attorneys and advocates:

If a person is found guilty of professional misconduct, the case will be referred to a

disciplinary committee, a hearing date will be set, and the Advocate and the Advocate
General of the State will be given a show-cause notice. After hearing from both parties, the
State Bar Council’s disciplinary commission The disciplinary committee of the State Bar
Council, after being heard of both the parties, may:

1. Dismiss the complaint, or where the proceedings were initiated at the instance of the State
Bar Council, directs that proceedings be filed;
2. Reprimand the advocate;
3. Suspend the advocate from practice for such a period as it deems fit;
4. Remove the name of an advocate from the state roll of advocates.[3]

There are multiple kinds of misconduct, thus this expression must be considered broadly to
extend the meaning under natural law. It is not justified to limit their natural meaning. The
Bar Council of India has the authority to establish guidelines and standards for professional
misconduct under Section 49 of the Advocate Act. According to the Act, it is against the
advocate’s code of ethics for anybody to make advertisements or solicitations. Additionally,
he is not permitted to use the name or service for unlawful purposes, demand payment for
training, or place advertisements in publications, personal communications, or interviews.

Misconduct is broad enough to cover both misfeasance and malfeasance, and it applies to
professionals. It also covers unprofessional acts, even if they are not always wrong. Any
behaviour that has the potential to reflect poorly on the legal profession or damage the
positive perception that the public should have of it constitutes professional misconduct.

The Supreme Court ruled in State of Punjab v. Ram Singh that misconduct can include moral
turpitude, must be improper or wrong behaviour, unlawful behaviour, wilful behaviour, a
forbidden act, a violation of an established and clear rule of action or code of conduct, but not
just a mistake of judgement, carelessness, or negligence in the performance of duty.

Contempt of court as professional misconduct

Contempt of court may be defined as an offence of being disobedient or disrespectful towards

the court or its officers in the form of certain behaviour that defies the authority, justice, and
dignity of the court. In various cases involving contempt of court, the court held that if any
advocate or legal practitioner is found guilty of the act of contempt of court, he/she may be
imprisoned for six years and may be suspended from practicing as an advocate (In re Vinay
Chandra Mishra). The court also held that license of the advocate to practice a legal
profession might be canceled by the Supreme Court or High Court in the exercise of the
contempt jurisdiction.[4]
There have been numerous additional significant rulings concerning instances of professional
misconduct by attorneys. The court in V.C. Rangadurai v. D.Gopalan examined the issue of
professional misconduct in such a way that the judgement was rendered in a humane manner,
taking the accused’s future into consideration. Even yet, the court declared, “justice has a
corrective edge, a socially beneficial purpose, especially if the offender is too old to be
pardoned and too young to be disbarred. Therefore, given the social environment of the legal
profession, a remedial punishment that is not cruel must be administered.

The court then rendered a ruling after carefully considering each and every element of the
case as well as the parties involved. It established a deterrence style of justice such that the
accused individual receives certain sanctions but also served as a message to others who
could be planning similar crimes.

The verdict proved to be a turning point in cases involving professional misconduct since it
gave a successful verdict without endangering the accused person’s future. The court
delivered the ruling in a number of other cases, such as J.S. Jadhav v. Musthafa Haji
Muhammed Yusuf[5] in a manner that gave the wrongdoers the impression that offenders will
be punished accordingly.

Case laws

In Sambhu Ram Yadav v. Hanuman Das Khatry, the appellant filed a complaint with the
Rajasthan Bar Council against an advocate alleging that while acting as counsel in the case,
the advocate wrote a letter alleging that the judge in question accepts bribes and requested Rs.
10,000 to acquire the judge’s favour. The Disciplinary Committee declared the advocate to be
completely unsuitable to be a lawyer after finding the advocate guilty of “misconduct” The
Rajasthan Bar Council’s conclusion that the legal profession is not a trade or business was
upheld by the Supreme Court.

Members of the profession have a special responsibility to uphold the to ensure that justice is
carried out legally, it is important to maintain the integrity of the profession and to deter
corruption. The advocate’s actions were extremely improper because they not only interfered
with the administration of justice but also damaged the profession’s standing in the eyes of
the general public.

Bar Council of Maharashtra v. M.V. Dahbolkar[6] The facts under consideration involved
advocates positioning themselves at the entrance to the Magistrate’s courts and rushing
towards potential litigants, often leading to an ugly scrimmage to snatch briefs and
undercutting of fees.

The Disciplinary Committee of the State Bar Council found such behaviour to amount to
professional misconduct, but on appeal to the Bar Council of India, it was the Bar Council of
India absolved them of all charges of professional misconduct on the ground that the conduct
did not contravene Rule 36 of the Standards of Professional Conduct and Etiquette as the rule
required solicitation of work from a particular person with respect to a particular case, and
this case did not meet all the necessary criteria, and such method of solicitation could not
amount to misconduct.

This approach of the Bar Council of India was heavily reprimanded by the Supreme Court. It
was held that a restrictive interpretation of the relevant rule by splitting up the text does not
imply that the conduct of the advocates was warranted or justified. The standard of conduct
of advocates flows from the broad cannons of ethics and high tome of behaviour.

It was held that “professional ethics cannot be contained in a Bar Council rule nor in
traditional cant in the books but in new canons of conscience which will command the
member of the calling of justice to obey rules or morality and utility.” Misconduct of
advocates should thus be understood in a context-specific, dynamic sense, which captures the
role of the advocate in the society at large.

Professional ethics of an advocate

Professional ethics includes a moral code that governs how those working in the legal field
and in the practise of law should behave. The court and the administration of justice are the
two entities to which every member of the legal profession owes a supreme responsibility. In
situations where there may be a conflict of duties, this duty takes precedence over all others.

Legal professionals must conduct themselves honourably, help the court in a responsible
manner, and foster public trust in the legal system. They are obligated and expected to
conduct themselves with decency and integrity when performing their duty toward other
lawyers. In addition to being experts in their fields, attorneys serve as officials of the court
and are essential to the administration of justice.

The set of guidelines that govern their professional behaviour consequently result from the
obligations they have to the court, their client, their adversaries, and other advocates. Chapter
II, Part VI of the Bar Council of India Rules contains regulations on the professional
standards that an advocate must uphold. In accordance with section 49(1)(c) of the Advocates
Act of 1961, these Rules have been established.

Advocate’s duties towards his client

 Bound to accept briefs.
 Not withdraw from service.
 Not appear in matters in which he is a witness.
 Full and frank disclosure to the client.
 Uphold the interest of the client.
 Not suppress any material of evidence.
 Not disclose any information about his client and himself.
 Not receive any interest in the actionable claims.
 Not charge depending on the success of matters.
 Keep proper accounts etc.

Advocate’s duty towards the court

Act in a respectable way

An advocate must conduct himself with dignity both during the course of his case and when
appearing before the court. He ought to act with respect for himself. The advocate has an
obligation to report his complaint to the appropriate authorities whenever there is a reason to
do so regarding a judicial officer.

Honour the court

The advocate must treat the court with respect. He or she must keep in mind that a free
community cannot survive without the dignity and respect shown to judicial officials.

No private communications

The advocate shouldn’t speak privately with the judicial officer about any case that is
currently before the court. The advocate shall not use illegal or unethical means, such as
threats, bribes, or coercion, to affect a court’s decision in any matter.

Refusal to act in an illegal manner towards the opposition

An advocate shouldn’t behave improperly toward the opposing counsel or party. He must
make every attempt to prevent his client from acting improperly, illegally, or unfairly against
the court, the opposing counsel, or the other party.

Refusal to represent clients who demand to engage in any unethical behaviour

When a client insists on utilising unethical or improper tactics, the advocate must decline to
represent them. He must speak with respect when communicating with others and making
arguments in court. During the pleadings, he must refrain from slanderously harming the
parties’ reputations.

Appear in the appropriate attire

The advocate must always appear in court while dressed appropriately in accordance with the
Bar Council of India Rules, and that attire must be presentable.

Not represent the establishment of which he is a member

An advocate is not allowed to testify in court on behalf of or in opposition to any organisation

of which he is a part. But this rule does not apply in the case of appointment as an ‘Amicus
Curiae’ or without a fee on behalf of the Bar Council.[7]

Punishment for professional and other misconduct

A lawyer’s profession is meant to be a divine or sacred profession by all means. In every

profession, there are certain professional ethics that need to be followed by every person who
is into such a profession. But there is the fact that professional misconduct is a common
aspect, not only in other professions but also in advocacy also. In simple terms, it means
certain acts done by persons who seem to be unfit for the profession as well as which are
against certain ethics in this field.
The term has been clearly defined in Black’s Dictionary as, the transgression of some
established and definite rule of action, a forbidden act, a dereliction of duty, unlawful
behavior, improper or wrong behavior. Its synonyms are misdemeanor, impropriety,
mismanagement, offense, but not negligence or carelessness.

Conduct of advocates

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 of its disciplinary committee.

(1A) The State Bar Council may, either of its own motion or on the 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.
[8]

(2) The disciplinary committee of a State Bar Council shall fix a date for the hearing of the
case and 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-

1. Dismiss the complaint or, where the proceedings were initiated at the instance of the State
Bar Council, direct that the proceedings be filed.
2. Reprimand the advocate
3. Suspend the advocate from practice for such periods as it may deem fit.
4. 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.

Disciplinary committee

who A person or group of individuals who have the authority to consider matters and
proceedings involving the professional misbehavior of an advocate upon a complaint,
revision, or suo motu is referred to as a discipline committee. The primary purpose of the
disciplinary committee is to monitor the observance of professional ethics and standards by
the members of the bar council of India or the bar council of any state.
Constitution of the disciplinary committee

The Bar Council shall constitute a disciplinary committee as per Section 9 of the Advocates
Act, 1961. This section provides that one or more disciplinary committees are required to be
formed and each of these disciplinary committees shall consist of three members.

The election of two from the three members of the disciplinary committee shall be done by
the Council from the members of the Bar Council of India itself. The third member shall be
co-elected by the Council outside of the members of the Bar Council but shall be an advocate
and possess qualifications as prescribed in Section 3(2) of the Advocates Act, 1961.

The section further states that the senior-most advocate shall be the chairman of the
committee. The term of members of this committee shall be not more than 3 years.

Powers of the disciplinary committee

Section 42 of the Advocate’s Act, 1961 provides powers of the disciplinary committee. The
section states that the disciplinary committee shall have the same powers as vested in a civil
court as per the Code of Civil Procedure, 1908 which are as follows:

 Summoning and enforcing the attendance of any person and examining him on oath.
 Requiring discovery and production of any documents.
 Receiving evidence on affidavits.
 Requisitioning any public record or copies thereof from any court or office.
 Issuing commission for the examination of witnesses or documents.[9]
 Any other matter which may be prescribed.

Restricted powers of the disciplinary committee

The disciplinary committee can exercise these powers only with the prior approval of certain
authorities. These are as follows:

 Attendance of any presiding officer of a court shall be allowed only with the prior approval of
the High Court to which such court is subordinate.
 Attendance of any officer of the revenue court shall be allowed only with prior approval of
the State Government.

Miscellaneous powers

 The proceedings before the disciplinary committee shall be deemed to be judicial

proceedings.
 The disciplinary committee shall be deemed to be a civil court.
 If a chairman or any member of the disciplinary committee is unavailable on the date fixed
for hearing the matter then the disciplinary committee may if it thinks fit proceed with the
hearing and pass necessary orders provided that the order passed shall not be the final
order. The proceedings and the order passed by such a committee shall not be invalid merely
because the chairman or all three members of the disciplinary committee were not present.
  Where the final orders cannot be made because of want of majority among the disciplinary
committee or is not in accordance with the opinion of the Chairman or the members of the
disciplinary committee then such matter or case shall be placed before the Chairman of the
Bar Council. If the Chairman of the Bar Council is acting as the chairman of the disciplinary
committee, then the case shall be placed before the Vice Chairman of the Bar Council. After
hearing the case, the Vice Chairman shall deliver his opinion and the disciplinary committee
shall follow such final order.

Regarding situations involving the professional misconduct of the advocates, there have been
various landmark judgments. The court in V.C. Rangadurai v. D.Gopalan examined the issue
of professional misconduct in such a way that the judgment was rendered in a humane
manner, taking the accused’s future into consideration. Even yet, the court declared, “justice
has a corrective edge, a socially beneficial purpose, especially if the offender is too old to be
pardoned and too young to be disbarred. Therefore, given the social environment of the legal
profession, a remedial punishment that is not cruel must be administered.

The court then rendered a ruling after carefully considering every aspect of the case,
including Even yet, the court declared, “justice has a corrective edge, a socially beneficial
purpose, especially if the offender is too old to be pardoned and too young to be disbarred.
Therefore, given the social environment of the legal profession, a remedial punishment that is
not cruel must be administered.

The court then rendered a ruling after carefully considering each and every element of the
case as well as the parties involved. It established a deterrence style of justice such that the
accused individual receives certain sanctions but also served as a message to others who
could be planning similar crimes.

A curative, not cruel punishment has to be delivered in the social setting of the legal
profession”. The court then gave the decision in such a way that it looked at each and every
aspect concerning the case as well as the parties concerned. It adopted a deterrent was of
justice mechanism so that the accused person is awarded certain punishments but also
provided a warning towards such other people who intend to commit acts of a similar nature.
The judgment turned out to be a landmark in cases concerning professional misconduct as it
delivered an effective judgment.

The decision proved to be a turning point for instances involving professional misconduct
since it offered a strong ruling without endangering the accused’s future. In numerous other
cases, such as J.S. Jadhav v. Musthafa Haji Muhammed Yusuf the court presented the ruling
in a way that gave the wrongdoers the impression that they would be punished appropriately.

Prescribed code of conduct for advocates

Misconducts are of limitless varieties. Thus, it is necessary that the expression ‘Misconduct’
must be acknowledged in a broad manner, so much so that the meaning of the term comes
under the purview of natural law, leaving no scope of justification for regulating the natural
meaning of the expression. The Advocates Act through Section 49, provides the Bar Council
of India the power to form and shape standards and rules regarding professional misconduct.
[10]
1) According to the Act, no advocate has the right to advertise or solicit his practice as it
violates the code of ethics of the Advocates. Both, indirect and direct means of advertising
are prohibited. Further, he is not allowed to advertise through personal communications,
interviews, or circulars. The following ways of indirect advertisement by the advocate are
prohibited:

 The issuing of election manifestos or circulars with the advocates name, address and
profession mentioned on such manifestos, which in a way is appealing to the members of
the same profession practising in the subordinate courts to endorse clients to the counsel.
 Campaigning for votes through tours within the province.
 Sending out his agents or clerks to various districts within the state to directly approach
advocates practicing in the lower courts.
 The nameplate or signboard exhibited by an advocate should not be of an unreasonable size.

Further, it should not mention the details affiliated with the advocate, for example, that he is
or was a member or the president of the Bar Council or of any other such An Open Access
Journal from or if he ever was an Advocate General or a Judge, or even his own
specialisation.

2) He is also not permitted to demand money for training purposes consequently enabling an
aspiring lawyer to meet the requirements for enrolment into the State Bar Council.

3) He is not allowed to associate his services or name with any unofficial practices or
purposes related to law or any agency of law.

4) He is forbidden from entering an appearance in any case wherein an advocate has already
been engaged by a party. He can do so after seeking the consent of the advocate engaged.
However, if the consent of the advocate is not produced in court, the advocate has to state an
appropriate reason for not being able to produce the same. He may appear afterwards, only
with the consent of the court.

Conclusion

The legal profession is seen as a noble profession by society. Professional ethics are crucial in
the legal profession, just like in any other career. There are some professional rules that one
must adhere to in order to preserve the dignity of this profession. Misconduct results when
someone violates these standards.

A lawyer’s chances of losing a case or clashing with his client are reasonable. However,
neither a loss nor a dispute with a client by themselves is sufficient cause to file a complaint
against a lawyer. A lawyer who engages in misconduct or malpractice, however, may be held
liable. It is a serious matter to file a complaint against a lawyer.

However, a lawyer who is guilty of misconduct or malpractice can be sued. Filing a

complaint against a lawyer is a serious matter and one must be very sure that their concern
with a lawyer involves professional misconduct.
CASE 1: A.S. Mohd. Rafi v. State of Tamil Nadu [AIR 2011 SC 308] IN THE SUPREME
COURT OF INDIA Crl. A. No. 2310 of 2010 | Decided On: 06.12.2010 A.S. Mohammed
Rafi Vs. State of Tamil Nadu Rep. by Home Dept. and Ors. HON’BLE JUDGES/CORAM:
Markandey Katju and Gyan Sudha Misra, JJ. CITATION: AIR 2011 SC 308, (2011) 1 SCC
688, (2011) 1 SCC(Cri) 509 ISSUE: Whether Bar Associations passing resolutions exhorting
lawyers not to accept briefs from particular persons is null and void? RULE: Standards of
Professional Conduct and Etiquette: Chapter II, Part VI of the Bar Council of India Rules The
rules mentioned under this chapter provides a general guide on conducts and etiquettes for the
advocates. The duty of the advocates to the Court, Client, Opponent and Colleagues are
specifically mentioned through various sections under this Chapter. As per Section II, an
advocate is bound to accept any brief in the Courts/ Tribunals/ any other authorities, for
which he proposes to practise at a fee in consistence with his standing at the Bar and the
nature of the case. Landmark Cases on 'Contempt' APPLICATION: The greatest tradition of
the bar is to defend those who have been accused for a crime. But when a resolution is passed
by any bar association which constrains its members from defending certain persons, then
such a resolution acts against the norms of the Constitution, the Statute and professional
ethics. The professional ethics requires that a lawyer cannot refuse a brief, provided a client is
willing to pay his fee, and the lawyer is not otherwise engaged. Hence, in the present case it
was declared that all such resolutions of any Bar Associations in India are null and void.
While referring to various historical examples, the apex court held that, every person,
however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or
repulsive he may be regarded by society has a right to be defended in a court of law and
correspondingly it is the duty of the lawyer to defend him. CONCLUSION: The Professional
Etiquette requires that a lawyer cannot refuse a brief, provided a client is willing to pay his
fee, and the lawyer is not otherwise engaged. Any resolution which exhorts lawyers from not
accepting a brief from a particular person is null and void. CASE 2: In Re: Arundhati Roy
[AIR 2002 SC 1375:(2002) 3 SCC 343] IN THE SUPREME COURT OF INDIA Contempt
Petition (crl.) 10 of 2001 Decided On: 06.03.2002 Appellants: In Re: Arundhati Roy
HON’BLE JUDGES/CORAM: G.B. Pattanaik and R.P. Sethi, JJ. CITATION: AIR 2002 SC
1375, (2002) 3 SCC 343, [2002] 2 SCR 213 ISSUE: Whether question of any motive of and
prejudice from any judges arises, when a suo motu action is taken by the court for cognizance
of a criminal contempt? Whether scandalizing the authorities of the court with malafide
intentions amount to criminal contempt? RULE: Contempt of Courts Act, 1971 “Criminal
contempt” means the publication (whether by words, spoken or written or by signs, or by
visible representation, or otherwise) of any matter or the doing of any other act whatsoever
which: 1. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any
court, or 2. prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or 3. interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner. Section 2(c) of the Act emphasizes to the
interference with the courts of justice or obstruction of the administration of justice or
scandalizing or lowering the authority of the court – not the judge. Section 12 deals with the
punishment for the contempt of court. Section 14(2) permits a person charged with the
contempt to have charge against him tried by some Judge other than the judge or judges in
whose presence or hearing the offence is alleged to have been committed and the court is of
opinion that it is practicable to do so. Section 15 of the Act empowers the court to take suo
moto action for cognizance of Criminal Contempt. APPLICATION: In the present case,
cognizance of the criminal contempt has been taken by the court, suo motu under Section 15
of the Contempt of Courts Act, 1971. No such provision such as the one made under Section
14(2) is made under Section 15 of the said Act. The reason being that, applying of any such
provision as mentioned in Section 14(2), when an action by the court is taken under Section
15, will deprive all the Judges of the court to hear the matter and thus frustrate the contempt
proceedings. Thereby, this cannot be the mandate of law. Hence when an action is at the
instance of the court, there is no question of any motive of and prejudice from any Judge. The
Constitution of India has guaranteed freedom of speech and expression to every citizen as a
fundamental right. While guaranteeing such freedom, it has also provided under Article 129
that the Supreme Court shall be a Court of Record and shall have all the powers of such a
Court including the power to punish for contempt of itself. Similar power has been conferred
on the High Courts of the States under Article 215. it is the same freedom of expression,
which is conferred on all citizens under Article 19(1). Any expression of opinion would,
therefore, be not immune from the liability for exceeding the limits, either under the law of
defamation or contempt of Court or the other constitutional limitations under Article 19(2). If
a citizen, therefore, in the grab of exercising right of free expression under Article 19(1), tries
to scandalise the court or undermines the dignity of the court, then the court would be entitled
to exercise power under Article 129 or Article 215, as the case may be. In In Re: S.
Mulgaokar [1978]3SCR162, it was observed that the judiciary is not immune from criticism
but when that criticism is based on obvious distortion or gross mis-statement and made in a
manner which is designed to lower the respect of the judiciary and destroy public confidence
in it, it cannot be ignored. Further, in Dr. D.C. Saxena v. Hon’ble the Chief Justice of India,
1996 Cri LJ 3274, it was held that scandalizing is an expression of scurrilous attack on the
majesty of justice which is calculated to undermine the authority of the courts and public
confidence in the administration of justice. In the present case, the respondent has accused the
court of proceeding with absurd, despicable and entirely unsubstantiated petition, which
amounts to scandalizing the court and thus a criminal contempt within the meaning of Section
2(c) of the Act. CONCLUSION: When suo motu action is taken by the court for cognizance
of a criminal contempt under Section 15 of the Contempt of Courts Act, 1971, no question of
any motive of and prejudice from any judges arises. Criminal Contempt of the Court by
scandalizing its authorities with malafide intentions is punishable under Section 12 of the
Contempt of Courts Act, 1971. CASE 3: R.K.Anand v. Registrar, Delhi High Court (2009) 8
SCC 106 IN THE SUPREME COURT OF INDIA Criminal Appeal No. 1393 of 2008
Decided On: 29.07.2009 Appellants: R.K. Anand Vs. Respondent: Registrar, Delhi High
Court [Along with Criminal Appeal No. 1451 of 2008] HON’BLE JUDGES/CORAM: B.N.
Agrawal, G.S. Singhvi and Aftab Alam, JJ CITATION: (2009) 8 SCC 106, [2009] 11 SCR
1026 ISSUE: Whether the High Court to prohibit an advocate from appearing before the High
Court and the courts sub-ordinate to it for a specified period as one of the punishments for
criminal contempt of court? RULE: Contempt of Courts Act, 1971 Section 2(c) of the Act
emphasizes to the interference with the courts of justice or obstruction of the administration
of justice or scandalizing or lowering the authority of the court – not the judge. Section 12
deals with the punishment for the contempt of court. Advocates Act, 1961 Section 34 of the
Act empowers the High Court to make rules laying down the conditions subject to which an
advocate shall be permitted to practice in the High Court and the courts subordinate to it.
APPLICATION: When a malefactor’s conduct and actions 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, then in such a
situation the court does not only have the right but it also has the obligation cast upon it to
protect itself and save the purity of its proceedings from being polluted in any way and to that
end bar the malefactor from appearing before the courts for an appropriate period of time. In
Pravin C Shah v. K.A. Mohd. Ali and Anr., AIR 2001 SC 3041, the Apex Court had
considered the case of a lawyer who was found guilty of contempt of court and as a
consequence was sought to be debarred from appearing in courts till, he purged himself of
contempt. In Ex. Capt. Harish Uppal v. Union of India and Anr., [2002] SUPP 5 SCR 186,
the direction prohibiting an advocate from appearing in court for a specified period was seen
not as punishment for professional misconduct but as a measure necessary to regulate the
court’s proceedings and to maintain the dignity and orderly functioning of the courts. It was
further held that the prohibition against appearance in courts does not affect the right of the
concerned lawyer to carry on his legal practice in other ways. Moreover, Kerala High Court
has framed Rules under Section 34 of the Advocates Act and Rule 11, which reads that, “No
advocate who has been found guilty of contempt of court shall be permitted to appear, act or
plead in any court unless he has purged himself of the contempt.” Hence, in the present
matter, the hon’ble court observed that, in a matter as fundamental and grave as preserving
the purity of judicial proceedings, the High Court would be free to exercise the powers vested
in it under Section 34 of the Advocates Act notwithstanding the fact that Rules prescribing
the manner of exercise of power have not been framed. However, in the absence of statutory
Rules providing for such a course an advocate facing the charge of contempt would normally
think of only the punishments specified under Section 12 of the Contempt of Courts Act. He
may not even imagine that at the end of the proceeding he might end up being debarred from
appearing before the court. The rules of natural justice, therefore, demand that before passing
an order debarring an advocate from appearing in courts he must be clearly told that his
alleged conduct or actions are such that if found guilty he might be debarred from appearing
in courts for a specific period. In order to avoid any such controversies in future, the apex
court had directed all the High Courts that have so far not framed rules under Section 34 of
the Advocates Act, to frame the rules without further delay. CONCLUSION: The High Court
can prohibit an advocate from appearing before the High Court and the courts sub-ordinate to
it for a specified period as one of the punishments for criminal contempt of court in order to
preserve the purity of judiciary. CASE 4: Radha Mohan Lal v. Rajasthan High Court AIR
2003 SC 1467 IN THE SUPREME COURT OF INDIA Criminal Appeal Nos. 445 and 449
of 1993 Decided On: 11.02.2003 Appellants: Radha Mohan Lal Vs. Respondent: Rajasthan
High Court (Jaipur Bench) HON’BLE JUDGES/CORAM: Y.K. Sabharwal and H.K. Sema,
JJ. CITATION: (2003) 3 SCC 427, [2003] 1 SCR 1011 ISSUE: Whether punishment for
contempt can be warded off, if the apology is tendered after being found guilty and infliction
of imprisonment? Whether an advocate is bound by constitutional obligation to say and
submit before the Court whatever he is instructed by his client? RULE: Contempt of Courts
Act, 1971 Section 2(c) of the Act emphasizes to the interference with the courts of justice or
obstruction of the administration of justice or scandalizing or lowering the authority of the
court – not the judge. Section 12 deals with the punishment for the contempt of court.
APPLICATION: Apology is evidence of real contrite as also of his consciousness of wrong
done by a person. In the case of M.Y. Shareef and Anr. v. The Hon’ble Judges of the High
Court of Nagpur and Ors. 1955 Cri LJ 133, a Constitution Bench of the apex Court accepted
the apology that was tendered before it for the first time. In view of the aforesaid, the hon’ble
court in the present matter, warded off the punishment for contempt, if the apology is
tendered after being found guilty and infliction of imprisonment. An advocate is not merely
an agent or servant of his client. He is an officer of the Court. He owes a duty towards the
Court. There can be nothing more serious than an act of an advocate if it tends to impede,
obstruct or prevent the administration of law or it destroys the confidence of the people in
such administration. In Shareef’s case, the Constitution Bench held that the counsel who sign
applications or pleadings containing matter scandalizing the Court without reasonably
satisfying themselves about the prima facie existence of adequate grounds, with a view to
prevent or delay the course of justice, are themselves guilty of contempt of Court, and that it
is no duty of a counsel to his client to take any interest in such applications; on the other
hand, his duty is to advise his client for refraining from making allegations of this nature in
such applications. Further, in Shamsher Singh Bedi v. High Court of Punjab & Haryana, 1995
Cri LJ 3627, the apex Court held that an advocate cannot escape his responsibility for
drafting a scandalous notice to a Magistrate on the ground that he did so in his professional
capacity. Hence, in the present matter, it was held that an advocate is not bound by
constitutional obligation to say and submit before the Court whatever he is instructed by his
client. CONCLUSION: The punishment for contempt can be warded off, even if the apology
is tendered after being found guilty and infliction of imprisonment. Further, an advocate is
not bound by constitutional obligation to say and submit before the Court whatever he is
instructed by his client. If he signs applications or pleadings containing matter scandalizing
the Court, he will be liable for contempt of court. CASE 5: Ramon Services Pvt. Ltd. v.
Subhash Kapoor AIR 2001 SC 207 IN THE SUPREME COURT OF INDIA Civil Appeal
No. 6385 of 2000 Decided On: 14.11.2000 Appellants: Ramon Services (P) Ltd. Vs.
Respondent: Subhash Kapoor HON’BLE JUDGES/CORAM: K.T. Thomas, J. CITATION:
AIR 2001 SC 207 ISSUE: Whether a litigant should suffer penalty for his advocate
boycotting the court pursuant to a strike call made by the association of which the advocate
was a member? RULE: Standards of Professional Conduct and Etiquette: Chapter II, Part VI
of the Bar Council of India Rules The rules mentioned under this chapter provides a general
guide on conducts and etiquettes for the advocates. The duty of the advocates to the Court,
Client, Opponent and Colleagues are specifically mentioned through various sections under
this Chapter. APPLICATION: Strikes by the professionals including the advocates cannot be
equated with strikes undertaken by the industrial workers in accordance with the statutory
provisions. With the strike by the lawyers, the process of court intended to secure justice is
obstructed which is unwarranted under the provisions of the Advocates Act. In Pandurang
Dattatraya Khandekar v. Bar Council of Maharashtra, [1984] 1 SCR 414, it was observed
that, “An advocate is expected to follow norms of professional ethics and try to protect the
interests of his client in relation to whom he occupies opposition of trust. It would be against
professional etiquette of a lawyer to deprive his client of his services in the court on account
of strike.” In Tarini Mohan Barari, In re AIR 1923 Cal. 212, the Full Bench of the High Court
held that pleaders deliberately abstaining from attending the court and taking part in a
concerted movement to boycott the court was a course of conduct held not justified. In the
light of the consistent views of the judiciary regarding the strike by the advocates, no
leniency can be shown to the defaulting party and if the circumstances warrant to put such
party back in the position as it existed before the strike. In that event, the adversary is entitled
to be paid exemplary costs. The litigant suffering costs has a right to be compensated by his
defaulting counsel for the costs paid. Hence, in the present case, the ex-parte decree was set
aside with payment of costs, which was to be recovered from the advocate. CONCLUSION:
The advocate would be answerable for the consequence suffered by the party, if the non-
appearance was solely on the ground of a strike call. It is unjust and inequitable to cause the
party alone to suffer for the self-imposed dereliction of his advocate. CASE 6: Bar Council of
India v. Board of Management, Dayanand College of Law AIR 2007 SC 1342 IN THE
SUPREME COURT OF INDIA Civil Appeal No. 5301-5302 of 2001 Decided On:
28.11.2006 Appellants: Bar Council of India Vs. Respondent: Board of Mang. Dayanand
Coll. of law and Ors. HON’BLE JUDGES/CORAM: H.K. Sema and P.K. Balasubramanyan,
JJ. CITATION: AIR 2007 SC 1342, (2007) 2 SCC 202 ISSUE: Whether the Bar Council of
India had no role in legal education and that its role was confined to controlling the
profession of Advocates and the commencement of the profession, that is, enrolment as an
Advocate? RULE: Advocates Act, 1961 The Bar Council of India is constituted under
Section 4 of the Advocates Act. The functions assigned to it are enumerated in Section 7 of
the Act. Section 7(1)(h) promotes legal education and lays down standards of such education
in consultation with the Universities in India imparting such education and the State Bar
Councils. 7(1)(i) recognizes Universities whose degree in law shall be a qualification for
enrolment as an advocate and for that purpose to visit and inspect Universities or cause the
State Bar Councils to visit and inspect Universities in accordance with such directions as it
may give in this behalf. Bar Council of India Rules The Bar Council of India Rules are
framed by the Bar Council of India in exercise of its rule making power. Part IV of BCI
Rules deals with legal education, the duration of it, the syllabi etc. As per Rule 12, Full-time
teachers of law including the Principal of the College shall ordinarily be holders of a Master’s
degree in law and where the holders of Master’s degree in law are not available, persons with
teaching experience for a minimum period of 10 years in law may be considered. Part- time
teachers other than one with LL.M. degree shall have a minimum practice of five years at the
Bar. Rule 17 stipulates that no college after the coming into force of the Rules shall impart
instruction in a course of study in law for enrolment as an advocate unless its affiliation has
been approved by the Bar Council of India. APPLICATION: The aim of most of the students
who enter the law college, is to get enrolled as Advocates and practice law in the country. To
do that, they have necessarily to have a degree from a university that is recognized by the Bar
Council of India. This directly means that the Principal of a Law College has to be appointed
bearing in mind that he should fulfil the requirements of the Rules of the Bar Council of India
framed under the Advocates Act and it be ensured that he holds a Doctorate in any one of the
branches of law taught in the law college. Therefore, when a request is made for selection of
a principal of a law college, the University and the Selection Committee has to ensure that
applications are invited from those who are qualified to be principals of a law college in
terms of the Rules of the Bar Council and from the list prepared, a person possessing the
requisite qualification, is nominated and appointed as the principal of a law college. Hence, in
light of this, it was observed that, the Bar Council of India plays an important role in legal
education. CONCLUSION: In the present case, it was concluded that only doctorate holder in
any of law subjects could be appointed as Principal of Law College. It would also be
necessary for proposed incumbent to satisfy requirements of Rules of Bar Council of India.
CASE 7: Prahlad Saran Gupta v. Bar Council of India, AIR 1997 SC 1338 IN THE
SUPREME COURT OF INDIA Civil Appeal No. 3588 of 1984 Decided On: 26.02.1997
Appellants: Prahlad Saran Gupta Vs. Respondent: Bar Council of India and Ors. HON’BLE
JUDGES/CORAM: S.C. Agrawal and G.B. Pattanaik, JJ. CITATION: AIR 1997 SC 1338,
(1997) 3 SCC 585 ISSUE: Whether Disciplinary Committee of Bar Council of India can held
a person guilty of serious professional on its findings on handwriting of the accused by
comparison done by itself? RULE: Advocates Act, 1961 As per Section 38 of the act, any
person aggrieved by an order made by the disciplinary committee of the Bar Council of India,
may within sixty days of the date on which the order is communicated to him, prefer an
appeal to the Supreme Court. APPLICATION: In State (Delhi Administration) v. Pali Ram,
1979 (1) SCR 931, it was observed that, “ Although there is no legal bar to the Judge using
his own eyes to compare the disputed writing with the admitted writing, even without the aid
of the evidence of any handwriting expert, the Judge should, as a matter of prudence and
caution, hesitate to base his finding with regard to the identity of a handwriting which forms
the sheet-anchor of the prosecution case against a person accused of an offence solely on
comparison made by himself. It is, therefore, not advisable that a Judge should take upon
himself the task of comparing the admitted writing with the disputed one to find out whether
the two agree with each other, and the prudent course is to obtain the opinion and assistance
of an expert.” In the present matter, Disciplinary Committee had based its conclusion purely
on the basis of its own comparison of the handwriting, hence the finding recorded by it was
not upheld. CONCLUSION: When the matter is related to a charge of professional
misconduct, it is quasi-criminal in nature and hence requires proof beyond reasonable doubt.
CASE 8: Central Bureau of Investigation, Hyderabad v. K Narayan Rao (2012) 9 SCC 512
IN THE SUPREME COURT OF INDIA Crl. A. No. 1460 of 2012 (Arising out of S.L.P.
(Crl.) No. 6975 of 2011) Decided On: 21.09.2012 Appellants: Central Bureau of
Investigation, Hyderabad Vs. Respondent: K Narayan Rao. HON’BLE JUDGES/CORAM: P.
Sathasivam and Ranjan Gogoi, JJ. CITATION: (2012) 9 SCC 512 ISSUE: Whether an
advocate giving legal opinion on account of being a panel advocate be charged under Section
120B for criminal conspiracy? RULE: Indian Penal Code, 1860 Section 120A defines
criminal conspiracy. When two or more persons agree to do, or cause to be done: (1) an
illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated
a criminal conspiracy. Provided that no agreement except an agreement to commit an offence
shall amount to a criminal conspiracy unless some act besides the agreement is done by one
or more parties to such agreement in pursuance thereof. Explanation. -It is immaterial
whether the illegal act is the ultimate object of such agreement, or is merely incidental to that
object. APPLICATION: The ingredients of the offence of criminal conspiracy are that there
should be an agreement between the persons who are alleged to conspire and the said
agreement should be for doing of an illegal act or for doing, by illegal means, an act which by
itself may not be illegal. In the present case, there is no specific reference to the role of the
advocate with the main conspirators. In Pandurang Dattatraya Khandekar v. Bar Council of
Maharashtra and Ors. (1984) 2 SCC 556, the Hon’ble Court held that “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.” Therefore, the
liability against an opining advocate arises only when he was an active participant in a plan.
In the given case, there is no evidence to prove that the advocate was abetting or aiding the
original conspirators. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Apex
Court held that an FIR or a complaint may be quashed if the allegations made therein are so
absurd and inherently improbable that no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused. Hence, in light of the above, all
the charges against the advocate were quashed. CONCLUSION: An advocate giving legal
opinion on account of being a panel advocate cannot be charged under Section 120B for
criminal conspiracy. Merely because his opinion may not be acceptable, he cannot be
mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that
he associated with other conspirators. At the most, he may be liable for gross negligence or
professional misconduct if it is established by acceptable evidence. CASE 9: O.P. Sharma v.
High Court of Punjab and Haryana, AIR 2011 SC 2101 IN THE SUPREME COURT OF
INDIA Crl. A. No. 1108-1115 and 1206 of 2004 Decided On: 09.05.2011 Appellants: O.P.
Sharma Vs. Respondent: High Court of Punjab and Haryana HON’BLE JUDGES/CORAM:
P. Sathasivam and B.S. Chauhan, JJ. CITATION: AIR 2011 SC 2101, (2011) 6 SCC 86,
(2011) 2 SCC(Cri) 821 ISSUE: Whether offering unconditional apology by filing affidavits
before the Courts, set aside te order sentencing the contemnors to jail? RULE: Contempt of
Courts Act, 1971 “Criminal contempt” means the publication (whether by words, spoken or
written or by signs, or by visible representation, or otherwise) of any matter or the doing of
any other act whatsoever which: scandalises or tends to scandalise, or lowers or tends to
lower the authority of, any court, or prejudices, or interferes or tends to interfere with, the due
course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends
to obstruct, the administration of justice in any other manner. Section 2(c) of the Act
emphasizes to the interference with the courts of justice or obstruction of the administration
of justice or scandalizing or lowering the authority of the court – not the judge. Section 12
deals with the punishment for the contempt of court. Section 15 of the Act empowers the
court to take suo moto action for cognizance of Criminal Contempt. Standards of Professional
Conduct and Etiquette: Chapter II, Part VI of the Bar Council of India Rules The rules
mentioned under this chapter provides a general guide on conducts and etiquettes for the
advocates. The duty of the advocates to the Court, Client, Opponent and Colleagues are
specifically mentioned through various sections under this Chapter. APPLICATION: The
subordinate judiciary forms the very backbone of administration of justice. The Apex Court
has always come down a heavy hand for preventing the judges of the subordinate judiciary or
the High Court from being subjected to scurrilous and indecent attacks, which scandalise or
have the tendency to scandalise, or lower or have the tendency to lower the authority of any
court as also all such actions which interfere or tend to interfere with the due course of any
judicial proceedings or obstruct or tend to obstruct the administration of justice in any other
manner. In the present matter, contemnor had tendered unconditional apology, recorded even
at the initial stage before the High Court and before the Magistrate, before whom the
unwanted incident had occurred and the present affidavits filed before the apex once again
expressing unconditional apology and regret with an undertaking that they would maintain
good behaviour in future and in view of the language used in ‘proviso’ and ‘explanation’
appended to Section 12(1) of the Act. A Court, be that of a Magistrate or the Supreme Court
is sacrosanct. The integrity and sanctity of an institution which has bestowed upon itself the
responsibility of dispensing justice is ought to be maintained. All the functionaries, be it
advocates, judges and the rest of the staff ought to act in accordance with morals and ethics.
An advocate should faithfully abide by the standards of professional conduct and etiquette
prescribed by the Bar Council of India in Chapter II, Part VI of the Bar Council of India
Rules. As a rule, he being a member of the legal profession has a social duty to show the
people a beacon of light by his conduct and actions rather than being adamant on an
unwarranted and uncalled for issue. In the present matter, the judiciary hoping that the entire
legal fraternity would set an example for other professionals by adhering to all the above-
mentioned principles accepted the unconditional apology tendered in the form of affidavits.
CONCLUSION: An apology should not be rejected merely on ground that it was qualified or
conditional. In the present case, unconditional apology was tendered at initial stage before
High Court and before Magistrate before whom unwanted incident had occurred and
affidavits filed before Court once again expressing unconditional apology and regret with
undertaking that they would maintain good behaviour in future. Therefore, Court accepted all
affidavits filed under Section 12(1) of the Act. However, acceptance of an apology from
contemnor should only be matter of exception and not that of rule. CASE 10: Prahlad Saran
Gupta v. Bar Council of India, AIR 1997 SC 1338 IN THE SUPREME COURT OF INDIA
Civil Appeal No. 3588 of 1984 Decided On: 26.02.1997 Appellants: Prahlad Saran Gupta Vs.
Respondent: Bar Council of India and Ors. HON’BLE JUDGES/CORAM: S.C. Agrawal and
G.B. Pattanaik, JJ. CITATION: AIR 1997 SC 1338, (1997) 3 SCC 585 ISSUE: Whether
Disciplinary Committee of Bar Council of India can hold a person guilty of serious
professional on its findings on handwriting of the accused by comparison done by itself?
RULE: Advocates Act, 1961 As per Section 38 of the act, any person aggrieved by an order
made by the disciplinary committee of the Bar Council of India, may within sixty days of the
date on which the order is communicated to him, prefer an appeal to the Supreme Court.
APPLICATION: In State (Delhi Administration) v. Pali Ram, 1979 (1) SCR 931, it was
observed that, “ Although there is no legal bar to the Judge using his own eyes to compare the
disputed writing with the admitted writing, even without the aid of the evidence of any
handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his
finding with regard to the identity of a handwriting which forms the sheet-anchor of the
prosecution case against a person accused of an offence solely on comparison made by
himself. It is, therefore, not advisable that a Judge should take upon himself the task of
comparing the admitted writing with the disputed one to find out whether the two agree with
each other, and the prudent course is to obtain the opinion and assistance of an expert.” In the
present matter, Disciplinary Committee had based its conclusion purely on the basis of its
own comparison of the handwriting, hence the finding recorded by it was not upheld.
CONCLUSION: When the matter is related to a charge of professional misconduct, it is
quasi-criminal in nature and hence requires proof beyond reasonable doubt.

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KEY TAKEAWAYS This provides the laws, rules and frame works related to legal
practitioners. It aims to bring together only one class of legal practitioners called
‘Advocates’. Advocates are allowed to practice throughout the state and before all courts and
tribunals. INTRODUCTION Enforced on 16th August, 1961 this Act was enacted to amend
and consolidate the laws that are related to the legal practitioners and provide for the
constitution of Bar Councils and an All India Bar. It lays down the legal framework and
guidelines for the legal practitioners. It includes the process of registering with state-level bar
councils along with the credentials that are required by an individual to practice law. The
Advocates Act, 1961 has replaced the Indian Bar Councils Act. In order to implement the
recommendations of All India Bar Committee that was endorsed by fourteenth Report of the
Law Commission in 1955, this Advocates Act of 1961 came into existence. The main
objective of this Act is to integrate and constitute one class of legal practitioners called
‘Advocates’. It also aims at prescribing a uniform qualification for the Bar and creating an
All India Bar Council and State Bar Councils.It also gives the rights and duties of an
advocate. IMPORTANT SECTIONS Below mentioned are the important sections that are
reflected in the Advocates Act. Section 2(1) (a): It states that an ‘Advocate’ is any person
who has entered under any roll under the provision of the Advocates Act, 1961. He argues in
favour of his clients in court of law. So any person, who fulfils the conditions required for an
admission as an advocate, may be enrolled as an advocate by the State Bar Council. The
conditions that need to be fulfilled for being enrolled as an Advocate are mentioned under
Section 24 of the Advocates Act, 1961. Section 7: It lays down the various functions,
regulatory and mandates of the Bar Council. Mainly it focuses on providing standards of
professional conduct and etiquette foradvocates. It lays down the procedure to be followed by
the disciplinary committees. It safeguards the rights, privileges and interests of the advocates.
Help in promoting and supportinglaw reforms. It encourages legal education and lay down
guidelines for legal education. It carries out seminarson legal topics by eminentjuristsand
publishes the law journals and papers of legal interest. It provides legal aidto the poor.
Section 9: According to this Section, a Bar Council must consist of one or more Disciplinary
Committees. Each of them must have three people, of whom two must be persons elected by
the Council from amongst its members, and the other shall be a person, who is co-opted by
the Council from amongst advocates, who possess the qualifications specified in the proviso
to Sub-section (2) of Section 3 and who are not members of the Council, and the senior-most
advocate, amongst the members of the Disciplinary Committee would be made the Chairman.
Section 16: It states that there are two classes of advocates; Senior Advocate and other
Advocates. An advocate, with his consent would be designated as a Senior Advocate if the
Supreme Court or High Court feels that he has the ability, standing at the Bar or special
knowledge or experience in field of law and is deserving for such distinctions. The Senior
Advocate would be subject to restrictions of Bar Council of India, which is prescribed in the
interest of legal profession. Chapter I of Part VI of the Rules of Bar Council of India makes
provisions in relation to the Senior Advocates. Section 24: This Section specifies the
qualifications of a person who is entitled to be enrolled into the Bar. It states the subject to
the provisions of this Act, and the rules made there under, state that a person would be
qualified to be admitted as an advocate on a State roll, if he fulfils the conditions like: he
must be a citizen of India, above the age of 21 years, has obtained a law degree after the 12th
day of March, 1967 and has cleared Bar Council of India exam. If the person has such
qualification he or she can enrol himself/ herself under any State Bar Council. Section 24A: It
states that a person, who is convicted of an offence which involves moral turpitude, cannot be
enrolled as an advocate. This applies till two years of elapsing since the expiry of the
sentence. While this is a disqualification for enrolment, the Supreme Court hasheldthat if the
disqualification is incurred after enrolment then the advocate must be disbarred for two years.
Section 29: This Section states that advocates are the only recognised class of persons who
are entitled to practise law. From the day they are appointed, only the class of ‘advocates’ are
allowed to practise the profession of law. Section 30: This Section defines the right of
advocate to practise. This Act allows an advocate, the right to practise throughout the
territory, before all the courts and tribunals. Section 35: This Section defines the punishment
of advocates for misconduct. It states that when a receipt of a complaint is submitted or a
State Bar Council has reason to believe that any advocate on its roll has been guilty of
professional or other misconduct, then it shall refer the case for disposal to its Disciplinary
Committee. The Disciplinary Committee of a State Bar Council would then 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. LANDMARK JUDGEMENTS 1. Pratap Chandra
Mehta vs. State Bar Council of Madhya Pradesh In this judgement, it was observed that on
failure to provide for the election, the Bar Council of India must constitute a special
committee for that purpose. Under Section 15(2), it is stated that without prejudice to the
generality of foregoing powers, rules can be made to provide for the electoral rolls and the
manner of publishing the results. The rules formed by the State Bar Council will become
effective only after it gets approval by the Bar Council of India, in terms of Section 15(3) of
the Advocates Act. The conduct of the State Bar Council must be maintained in consonance
with the democratic principles, keeping in mind the high professional standards of the
advocates. Therefore, this power does not fall beyond the preview and scope of Section 15,
read in conjunction with other provisions. Further it was held that, the language of Section
15(3) of the Advocates Act, is clear and the amended rules had received the approval of the
Bar Council of India. LCI Learning 2. T. N. Raghupathy vs High Court of Karnataka and
others. In this case, the appellant claimed a writ of mandamus for forming new norms in
consonance with the provisions mentioned in Section 16(2) of the Advocates Act, relating to
the designation of Senior Advocates. The Court observed that the appellant did not have any
locus standi to file a writ petition in view of the public interest. Learned Senior Counsel, Mr.
K. K. Venugopal, Mr. Kapil Sibal, Mr. Gopal Subramaniam and Mr. Aditya Sondhi
submitted before the High Court that it is not right in holding that view. Some of the issues
that were raised in the writs did require consideration. It was concerned with the High Court
only, as it is the High Court that deals with the formation of rules, guidelines, regulation
regarding the designation of the Senior Advocates. Hence the impugned order was set aside
and the High Court was requested to consider the matter on merits. 3. Mahipal Singh Rana vs
State of UP Here the Bar Council of India submitted that Section 24A of the Advocates Act
gives a bar against the admission of a person as an advocate if he is convicted of any offence
which involves moral turpitude. It also provides that the bar can be lifted after two years of
release. But the provisions did not explicitly mention the removal of an advocate if the
conviction is done after the person is registered as an advocate. It was stated that, the term
moral turpitude has to be understood because even a minor offence could be termed as
involving moral turpitude. The only other related provision was to take action under Section
35, and prove misconduct. It was further submitted that only the Bar Council has the power to
punish an advocate under professional misconduct as per the provisions given under Section
35 of the Advocates Act. The counsel also submitted that a general order must be
communicated to all the courts regarding the conviction of an advocate involving moral
turpitude. And after the judgement is delivered, the Bar Council of India and concerned Bar
Councils start proceedings against such advocates. 4. Noratanman Courasia vs M. R. Murali
Here the Supreme Court explored the term “professional misconduct” in Section 35 of the
Advocates Act. The facts of the case included, an advocate assaulting the complainant, and
asking him to refrain from proceeding with the case. The question being put up was, whether
the act of advocate would amount to misconduct? The Supreme Court held that a lawyer is
obliged to observe the norms of behaviour that are expected of him. In addition to the fact
that he was not acting in his capacity as an advocate, his behaviour as a whole was unfit for
an advocate. The Bar Council was justified in conducting disciplinary actions against him.
The Court had carried out an over view of the jurisprudence of the Court regarding
misconduct of advocates, and held that “misconduct” is incapable of a precise decision. It
includes improper behaviour, intentional wrongdoing, deliberate violation of a rule etc.
Therefore, “misconduct” though incapable of an appropriate definition, it acquires its
connotation from the context, the delinquency in its performance and its effect on the
discipline and nature of duty. 5. Thyssen Krupp Industris vs Suresh Maruti Chougule, Union
of India, Bar Council of India and Others In this case, the Bombay High Court dismissed a
challenge questioning the constitutional validity of Section 36(4) of the Industrial Dispute
Act, 1947. It restricts the appearance of lawyers in labour courts and tribunals stating that
there must be a legal distinction between the right of an advocate to practice law under
Section 29 and 30 of Advocates Act and the right to appear and address a court of law or
tribunal. The welder filed an application against the engagement of Thyssen’s with a legal
practitioner, which was allowed by the Court. Thyssen’s counsel argued that the assistance of
a trained advocate is essential due to the complicacy related with the industrial adjudication.
Due to this, the companies are unable to represent their case before a labour court effectively.
The counsel on behalf of the welder argued that, right to practice law is not a Fundamental
Right, vested or a legal right, thus a party cannot claim such a right to engage an advocate.
The High Court held that there is a legal distinction between the two Acts and the right to
practice guaranteed under Advocates Act do not confer on a litigant the right to get
represented by any particular advocate, but can only be represented by an advocate if
necessary. And, the right to practice is not an absolute right but only restricted in nature. It
was also observed that, as Fundamental Rights do not provide a litigant the right to be
represented by a lawyer in a court, it becomes difficult to accept the arguments that Section
36(4) of ID Act is unconstitutional and ultra vires with Article 14 and 21 of the Constitution
of India.

Read more at: https://www.lawyersclubindia.com/articles/the-advocates-act-important-

sections-and-case-laws-14189.asp
PROFESSIONAL MISCONDUCT BY ADVOCATES IN INDIA:

A CRITICAL STUDY

INTRODUCTION

In the basic sense, the word 'Professional Misconduct' implies unethical actions. It implies, in

the legal sense, an act intentionally committed by the people involved in the profession with

the wrong intention. For his selfish ends, it implies any action or actions of an advocate in

breach of professional ethics. It leads to 'professional misconduct' if an act results in a

conflict with his profession and renders him ineligible to be in the profession. In other words,
an act that disqualifies an advocate from continuing in the field of law.

In the Advocates Act, 1966, misconduct was not specified, but misconduct envisages

infringement of discipline, although it would not be possible to set out exhaustively what

would constitute misconduct and indiscipline, which, however, is broad enough to include

wrongful omission or commission, whether done or omitted to be done intentionally or

unintentionally.

In Black's Dictionary, misconduct has been described as a transgression of some known and

definite rule of action, a prohibited act, a dereliction of duty, unlawful behaviour,

inappropriate or incorrect behaviour. Misdemeanours, impropriety, mismanagement, offence,

but not negligence or carelessness, are synonyms.

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In Noratanmal Chaurasia v. M.R., the case The Supreme Court held that misconduct was

not specified in the Advocates Act, 1966, but misconduct envisages violation of discipline,

although it would not be possible to set out exhaustively what would constitute misconduct

and indiscipline, which, however, is broad enough to include wrongful omission or

commission, whether done or omitted to be done intentionally or unintentionally

It has been concluded In Re Tulsidas Amanmal Karim that any behaviour that in any way

renders a person unfit for the exercise of his profession or is likely to influence or embarrass

the administration of justice by the High Court or any other subordinate court may be

regarded as misconduct.

In the case of a judge, if a lawyer's behaviour is such that it makes him incapable of

becoming a member of the honourable legal profession and unable to be entrusted with the

responsible duties that a lawyer is called upon to perform, he would be guilty of errors.

Thus, two tests were laid down following this case:—

(a) The conduct of the advocate is such that, in order to remain a member of the honourable

profession, he must be treated as unworthy.

(b) The lawyer's conduct is such that it must be deemed unfit to be entrusted with the

responsible duties which the lawyer is called upon to perform.

These two tests have been interpreted as disjunctive and thus the fulfilment of any one of the
said criteria will be appropriate to regard the behaviour as misconduct.

ADVOCATES ACT, 1961

“Section 35

Punishment of advocates for misconduct1.—

(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

1 https://indiankanoon.org/doc/1460739/

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the case for disposal to its disciplinary committee. 1[(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 2[***] 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. 3[Explanation.—in this section,

4[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.]

Section 41

Alteration in the roll of advocates

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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.

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(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.”

Professional misconduct vis a vis court contempt

The spectrum of contempt proceedings is far broader than professional misconduct

proceedings, as professional misconduct proceedings may only be carried out against the

lawyer, while contempt proceedings can be instituted against both bar and bench members.

There is no fixed procedure for the initiation or penalty of the accused/ guilty in the case of

contempt of court and although proceedings are to be carried out in the case of professional

misconduct in compliance with the Advocates Act 1966, which lays down a thorough

procedure for the same.

In the case of proceedings for contempt of court, the Criminal Procedure Code and the Indian

Evidence Act are not valid because these proceedings are carried out on the basis of the

principles of natural justice- objectivity and fairness, respectively. Cross-examination in

contempt of court proceedings is tolerated in restricted cases only.

For instance, Mr. R.K. Anand was not permitted to cross-examine Poonam Aggarwal, who

was in charge of the sting operation, in the case of contempt proceedings against R.K Anand.

In comparison, cross-examination is a significant element of professional misconduct trials.

As provided for in the Contempt of Court Act, the penalty for contempt of court also varies

from the penalty for professional misconduct provided for in the Advocates Act, 1966.

CRITIQUE

The Advocates Act 1961 was a long sought-after act to consolidate the law relating to legal

practitioners, the establishment of autonomous Bar Councils, the prescription of a uniform

qualification for membership and the registration of individuals as advocates, and more

significantly, it imposes penalties on advocates for professional misconduct and serves as a

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quasi-judicial body in that regard. The Bar Council formed under the Act is only a body that
can be approached for professional misconduct of a lawyer except for contempt of court,

which is also misconduct. However, in terms of its ability to sanction for professional and

other wrongdoing, the following criticisms are levelled against the Act;

(1) No right of appeal shall be provided for in the act before the relevant High Courts and,

hence, the power of the Bar Council of the State to act shall be equated with that of the High

Court.

2) It is impossible for an advocate to approach the Supreme Court in the ordinary course and

to seek the case from an aggrieved order of the Bar Council of India

3) The act did not specify the term misconduct, but instead included professional and other

misconduct, and the Bar Councils and Supreme Court are left to determine and to extend the

scope of the definition.

(4) Denial of the principle of natural justice to an ordinary litigant aggrieved by the

advocate's wrongdoing, as the body of its association, i.e. the Bar Council, decides the case in

which the respondent is its own member. This is against the "no man can be a judge in his

own case" theory. In order to seek some pecuniary relief due to the damage incurred by such

misconduct, the lay individual must contact relevant forums established under the Consumer

Protection Act 1986 if it suits under service deficiency.

(5) Sometimes, on the basis of the circumstances, the legislation violates Article 19(1) (g),

the right to practice a trade or professional operation, as well as the freedom of speech and

expression provided for in Article 19(1) (a).

However, the legislation has largely accomplished the purpose of the legislature to preserve

the integrity of the profession and to retain the moral etiquette of legal practitioners.

LANDMARK JUDGEMENTS

1. State vs. Lalit Mohan Nanda

It is the responsibility of a Lawyer to defend his client's interests by all reasonable and

honourable means, but the opposite occurred in the case of State vs. Lalit Mohan

Nanda. In this case, the point of concern was whether Mr. Nanda was guilty of

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professional misconduct for a violation of the laws on the professional conduct of

lawyers under Section 15(a) of the Indian Bar Councils Act, 1926. Advocate Lalit
Mohan Nanda was found guilty of professional misconduct by the Hon’ble Orissa

High Court, as he was found guilty of changing sides, meaning that after appearing

for the first party, he had appeared for the opposite party in the same case. The

responsibility of upholding a client's interest was violated.2

2. Shambhu Ram Yadav vs. Hanum Das Khatry3

The respondent wrote a letter to his client in the case of Shambhu Ram Yadav vs.

Hanum Das Khatry, and asked him to bribe the judge so that he could help the client

win the case. The respondent was found guilty of bribery under Section 35 of the

Advocates Act, for bribing a judge, and he was barred from practise for a term of two

years by the State Bar Council. By order of 31 July 1999, the respondent challenged

the above order before the Disciplinary Committee of the Bar Council of India. By

order of 31 July 1999, the Disciplinary Committee of the Bar Council of India,

consisting of three members, reinforced the penalty and ordered that the name of the

respondent be excluded from the roll of advocates, thus permanently prohibits him

from practice. In addition, the respondent was transferred to the Honourable Supreme

Court of India. "The Honourable Supreme Court here upheld the decision of the

Disciplinary Committee of the Bar Council of India and declared that" The legal

profession is not a trade or business. It is a noble profession”.

3. Emperor vs. K.C.B.

Some tins of ghee were held in Bazrang Lal Marwari's custody in the case of Emperor

vs. K.C.B, as it was confiscated for adulteration by the Municipal Authorities, Katwa.

Bazrang Lal Marwari was falsely informed by the advocate that the Sub-Divisional

Officer, Katwa, had instructed the owner to hand over the tins. The Honourable

Calcutta High Court ruled here that the lawyer was guilty of misconduct for supplying

false data.

4. L.C. Goyal vs. Suresh Joshi

2 https://lexforti.com/legal-news/professional-misconduct-of-advocates-in-india/#_ftn4

3 http://www.legalservicesindia.com/article/1665/Professional-misconduct-of-lawyers-in-india.html

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If a lawyer receives and misuses money from his clients for court purposes, it is
known as misappropriation, which amounts to professional misconduct. One such

case of misappropriation is L.C Goyal v. Suresh Joshi. In this specific case, the money

earned as a court fee was misappropriated by an attorney (appellant in this case). The

appellant had misappropriated an amount of Rs. 25,491/- for which he had been found

guilty of professional misconduct by the Honourable Supreme Court.

Right to Advertisement of Legal

Professionals in India
By Kartik Gupta | Views 28799
11 2 3 Blogger0 pocket1 Digg2
Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.- United Nations,
Universal Declaration of Human Rights

Introduction
Right to Advertisement is one of the intrinsic features of conducting any business, profession,
or any other organization in today s world. It provides a platform for the person to
communicate any form of information to the public at large, given that such advertisement
formulates on the rules and regulations laid down on such behalf. The communication can be
through newspapers, magazines, emails, letters, events, etc.

Advertisements or Commercial Speeches has been incorporated under Article 19 (1) (a) of
the Constitution of India. It has been accepted as a part of Freedom of Speech and Expression
, The Supreme Court has considered in the case of Tata Press[1] that the public at large has a
right to receive the commercial information and such protection of Article 19 (1) (a) of the
Constitution of India is available to both speaker and recipient of the speech. The commercial
nature of such expressions were held to be immaterial while extending the protection under
the said article of the Constitution.

And like any other fundamental right, freedom of speech and the expression is also not an
absolute right. Under Article 19 (2) of the Constitution of India, the state may impose
reasonable restriction on the exercise of such right in the interest of the public on the
following ground:
i. Sovereignty and Integrity of India
ii. Security of State
iii. Friendly relations with foreign states
iv. Public Order
v. Decency or Morality
vi. Contempt of Court
vii. Defamation
viii. Incitement to an offense

But this right of the advertisement has been completely done away with, in the case of legal
professionals. There is a complete prohibition on a legal professional to advertise their legal
services through the court of law. This includes any type of advertisement w.r.t. legitimate
administrations provided, by posing as a legal counselor under the legal framework.

The root of prohibition can be directly traced back to Rule

36 of the Bar Council of India as under:
36. An advocate shall not solicit work or advertise, either directly or indirectly, whether by
circulars, advertisements, touts, personal communications, interviews not warranted by
personal relations, furnishing or inspiring newspaper comments or producing his photographs
to be published in connection with cases in which he has been engaged or concerned. His
sign-board or name-plate should be of a reasonable size.

The sign-board or name-plate or stationery should not indicate that he is or has been
President or Member of a Bar Council or of any Association or that he has been associated
with any person or organization or with any particular cause or matter or that he specializes in
any particular type of worker or that he has been a Judge or an Advocate General.

This rule clearly states that the Legal Profession is different from any other profession, unlike
others soliciting work under the legal profession, has been completely banned by such rule.
The reasoning was that the legal Profession being the noblest profession will lose its light if
the advertisement is permitted within the legal market. Justice Krishna Iyer in the case of Bar
Council of Maharashtra v. M.V. Dhabolkar[2] said that:
Law is not an exchange, not briefs, not stock, thus the paradise of business rivalry ought
not to vulgarize the lawful calling. It is the idea that legal advertising will render this
prestigious profession into a mere profit-making institution which will maneuver the focus
from the concepts like liberty and Justice to profits.

However, there lies a cosmic debate in the legal sector and existing criticism against such
archaic BCI rules which prohibit all types and forms of advertisement. Pitting the ideas of
Reasonability, Constitutionality, Transparency, free flow of ideas, globalization, and
liberalization against the above-said rule.

Law as a Noble Profession

Law is a traditional profession having public service goals at the center of it all. From the
start of this profession considered as an upholder and protector of law. The service under
such a sector was provided with the foremost aim to serve society and then to earn a
livelihood.

In the case of Indian Council of Legal Aid and Advice v. Bar Council of India[3], the
Supreme Court enunciated that profession of law being a pious and honorable profession, its
main object being the service of mankind by serving the system of administration of justice, it
is the pious duty of the Bar Council to protect its public image by restricting the inflow of
large numbers of retired personnel who seek to enter a legal profession solely for additional
gains.

It is imperative to understand that law as a profession is nothing without its ideals and ethics.
And therefore in every law school curriculum, an important subject is taught Professional
Ethics to make sure that the young law minds met with the demands of such a profession by
upholding the ideals and ethics.

Also in the case of Bar Council of Maharashtra v. M.V. Dhabolkar[4], Justice Krishna
Iyer has further stated that:
the canon of ethics and propriety for the legal profession totally taboo conduct by way of
soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy, for the
betterment of the legal business.

But the question that remained unanswered is how soliciting the service, being incidental to
the profession will affect the primary conduct of law professionals? Is it not possible to pave
a way where both the ideals go hand in hand, i.e. allowing the advertisement within the legal
market without creating any challenges against the noble profession.

Placing such strict standards and regulations on the lawyers only go against the idea of the
nobility of the profession. Such a rule-based upon the Victorian notion, although where the
British have evolved to a modern idea of the legal profession, we stuck ourselves to the
traditional and outdated idea. Word of Mouth is not enough in today s world to embrace the
sanctity of the profession, legal industry must be open for changes to thrive.

Rule 36 of BCI also stands on a very thin line constitutionally, as it is not covered properly
on any of the exceptions laid down in Article 19 (2) of the Constitution of India. The same
rule was tested in the case of V.B. Joshi v. Union of India 2008, where the scope of online
advertisement was given some relaxation to help the lawyers to reveal certain information,
such changes will not come into existence if this rule 36 comes entirely works within the
periphery of the Article 19 (2) of the Constitution of India.

And strict actions could be taken against the lawyers or law firms who still advertise through
circular letters or election manifestos or organizing moot court competitions or offering
certificate courses or written articles or using visiting cards etc. All of this adds to the
vulnerability and flawed reasoning behind this rule. Now, how can a rule safeguard the
nobility of the profession when it s not even constitutionally sound?

Legal Profession a commercial activity

The amendment in rule 36 is a clear effect of the developing change in the system, where
even the legislators accepted the adaptation by introducing the exception clause in the above-
mentioned rule. The amendment to Rule 36, Section IV of the BCI rules allowed advocates
the opportunity to advertise online. It permits the advocates to upload their names, addresses,
phone numbers, e-mail IDs, enrolment details, qualifications, and area of practice on the
selected website.[5]

Earlier both direct and indirect types of advertisements were frowned upon by the rule,
several case laws existed to disallow the lawyers from indulging in such activities. In the case
of Government Pleader v. S.A pleader[6], it was decided that sending a postcard displaying
the address, name, and description of an advocate would amount to the advertisement. In
another case, it was held that under the election manifestos, lawyers are prohibited to
propagate his name and advertise in the form of announcements and canvassing[7].

The traditional idea of the legal profession and the reasoning behind such precedents getting
faded day by day, the legal profession is being given the same treatment as any other
profession or service. The landmark case of Bangalore Water Supply v. A. Rajappa[8]
which provides clarity on the term Industry included legal profession in it. Further, in the
case of K Vishnu v. National Consumer Dispute Redressal Commission[9], it was observed
that advocate being regarded as an officer of the court, but cannot be set free from their basic
role of services to their clients and therefore the legal administrations can be subject to the
Consumer Protection Act, 1986.

Even in the Report of the High-Level Committee on Competition Policy and Law, under the
Chairmanship of S.V.S. Raghavan stated that:
the legislative restrictions in terms of law and self-regulation have the combined effect of
denying opportunities and growth of professional law firms, restricting their desire and ability
to compete globally, preventing the country from obtaining the advantage of India s
considerable expertise and precluding consumers of free and informed choice.[10]

Lloyd Pearson, London-based Legal Directories Consultant also said that because of such
advertising restrictions, the world knows very little about most Indian firms or lawyers,
despite having 1.2 million of them.[11]

Thus, it may be said that law service is becoming subject of trade-related laws, therefore
consumers, supplier, demand, and supply must be given adequate space to conduct activities.
Attaching such a negative image with the term trade is also unnecessary, trade is not just
about profits but also consumer satisfaction, informed choices, free flow of information, etc.

It is time to come with terms that the Legal profession is both noble as well as contain
commercial characteristics, and suppressing the later part in the limelight of the former is
simply mistaken and wrong. The courts, as well as Bar Council, must realize that such
restrictions, in reality, are imposed on the small-time lawyers or law firms, cause the lion's in
the legal market, first of all, need very little advertisement and secondly, even if they do, they
meet the need through organizing competitions or events, publishing information on
websites, using foreign-based publications, etc. These resourceful firms had found other ways
to advertise themselves to attract prospective clients and referral partners while the complete
burden of such restrictions is bearing by other lawyers with a lack of resources under the
context of the nobility of the legal profession.

Conclusion
Lawyers had two sets of duties, one owed to the court and the other owed to the public, these
duties also encompasses some rights within it. And as long as these rights do not interfere
with either set of duties, the lawyers are fully competent to exercise such rights. A reasonable
scope of advertisement can coexist which does not affect the honor of the Profession.

In the above-discussed case of V.B. Joshi v. Union of India, several other important issues
such as publishing brochures for distribution at seminars and having insertions in online law
dictionaries, were not discussed by the court and the amendment only limited itself to online
advertisements. The amendment vividly did not take into account the illiteracy rate of India,
or they choose to ignore it. Not all people in India have access to the internet or even if they
do, they lack skills to utilize it at the required level.

Countries like the U.K. and the U.S. have lifted the limitations imposed on the advocates
concerning the legal advertisement by enforcing regulations to ensure that there is a particular
standard deciding the size and style of the advertisement. Although, it is a risky operation
where the negative impact may overshadow the positive aspects of advertisements and also
does not offer any guarantee that just because it is successful in other countries will be
particularly successful in India. But since when the govt. has stopped itself from enforcing
new laws which have more severe outcomes, because of the factors such as risk and chances
of not been successful.

Despite the above argument, any reasonable person can foresee that the negative factors
attached to the idea can easily be curtailed by effectively following a set of rules. A panel
could be shaped to administrate over concerning matters, for example:
1. The exploitation of the Idea: If not regulated properly, it might likely get exploited by
unscrupulous lawyers by furnishing false information, defaming others, making the
mockery of the court system, immoral punchlines, etc. to sway gullible consumers.
2. Shifting Focus: Lawyers will have to focus on publicizing themselves as well, in
addition to legal arguments, skills, and knowledge.
3. Expensive Legal Services: Lawyers will obviously incur a cost in advertising, which
will make the service of the lawyer more expensive, that will fuel another controversy
altogether.
4. Bring hatred in the Profession: Lawyers will develop jealousy amongst their
colleagues, which will impair the dignity of the profession.

Therefore, the BCI must come with the modification to put a close check over the
advertisement in the legal sector to safeguard the favored traditional notion and attract penal
provisions to punish the violators.

It is also important to note that some kind of advertisement still exists in the current legal
market especially by huge law firms or big lawyers and there is no regulations or rules to
regulate them, the position of the profession will still be far better off than sticking to the age-
old rule of BCI without even considering the advantages of the regulated legal advertisements
including opportunities to the young lawyers, free flow of information, increased awareness
among the public about the legal market, Global recognition, facilitating better services to the
domestic as well as international clients, etc.

In the age of globalization and commercialization, to justify the BCI rules, the reasoning of
law is a noble Profession is simply not enough. This rule is affecting the lawyers as well as
the public by impounding their rights incorporated under the constitution. This is the duty of
legislators and judicial courts to harmoniously construct rules to allow advocates to advertise
while preserving the respect of the legal profession in India.