Professional misconduct

The term “Professional Misconduct” is not defined anywhere in the Advocates Act, and a
standard definition is impossible to come up with. As a result, precedents in this area are the only
reliable source of information about what constitutes professional misconduct.
Complaint to SBC
Forwarded to disciplinary committee u/s 35(2)
After judgement if accused is not sartisfied then he may file u/s 37
Now Passed to BCI
If still not satisfied then appeal to SC

Important Provision
Section 35 of the Advocates Act of 1961 deals with the disciplinary powers of the State Bar
Councils and the punishment of advocates for misconduct.

Section 35[2] states that –

“Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that
any advocate on its roll has been guilty of professional or other misconduct, it shall refer the
case for disposal to its disciplinary committee”.

Furthermore, the disciplinary committee of a State Bar Council shall set a date for the case to be
heard and shall give notice to the advocate involved as well as the State’s Advocate-General.
After giving the advocate in question and the Advocate-General an opportunity to be heard, the
disciplinary committee of a State Bar Council may decide on the matter.

The Disciplinary Committee can issue the following orders: dismiss the complaint or direct
that the proceedings be filed if the complaint was filed at the request of the State Bar
Council.

 Reprimand the lawyer.

 Suspend the lawyer from practising for as long as it sees fit
 Remove the advocate’s name from the State’s list of advocates.

When dealing with any case brought under this section, the Bar Council of India’s disciplinary
committee must follow the same procedure as set out in section 35. When it comes to the Bar
Council of India, notice must be given to both the concerned advocate and the Attorney-General
of India, which in the case of the State Bar Council is the State Advocate-General.

Any person who is aggrieved by an order of the disciplinary committee of a State Bar Council
made under section 35 or by the Advocate-General of the State may appeal to the Bar Council of
India under section 37 within sixty days of the date of communication of the order to him.

The Bar Council of India’s disciplinary committee will hear such an appeal. Furthermore, any
person who is still aggrieved by an order made by the Bar Council of India’s disciplinary
committee under section 36 or section 37, or the Attorney-General of India, as the case may be,
may file an appeal with the Supreme Court within sixty days of the date on which the order is
communicated to him, and the Supreme Court may pass such order (including an order varying
the punishments awarded by the disciplinary committee of the Bar Council of India) thereon as it
deems fit.
IMPORTANT CASES

Advocate v. Bar Council of India

Facts: In this case the bona fide act of an advocate who in good faith acted under the instructions of
someone closely connected with his client and entertained a bona fide belief that the instructions were
given under the authority of his client.
Holding:
The accused Advocate should be provided the benefit of doubt, in absence of the charges against
him/her proved beyond reasonable doubt

C. Ravichandran Iyer v/s. Justice Bhattacharjee, 1995

Facts: Bar Council of Maharashtra and Goa passed a resolution demanding resignation of Justice
A.M. Bhattacharjee as they deemed him to be unfit to perform his duties. The copy resolution was
sent to the press and the president. When Justice A.M. Bhattacharjee heard about it he himself
resigned. The action of Bar council was challenged in SC.
Holding:

Our Constitution permits removal of the Judge only when the motion was carried out with
requisite majority of both the Houses of Parliament recommending to the President for
removal. The grounds for removal is proven misbehavior or incapacity. The Constitution does not
permit any action by any agency other than the initiation of the action under Article 124(4) by
Parliament. Presient of Himself does not have power of removal.
By issuing the resolution the Bar association encroached their powers. Committed defamation,
contempt of court and harmed independence of judiciary.

P.D. Gupta v.Rammurthi

Fact of the case:- One Mr. Krishnan died on 5-6-1980. His sister Vidyawati filed a suit for
decleration of title in her favour for certain properties of Mr. Krishnan, Ramamurthi and
others resisted the suit claiming title in their favour. P.D.Gupta was the Advocate of
Vidyawati. When the suit was pending P.D. Gupta purchased it for Rs.18000 and sold it for
34000 immediately. Mr. ramamurthi filed a complaint against P.D.Gupta before the Delhi
Bar Council alleging professional misconduct. The main allegation is that he has purchased
the part of the disputed property from his client during the pendency of the suit. Since the
enquiry was not completed within one year the matter is transferred to the Bar Council of
India. After hearing both the parties, the Bar Council of India passed an order suspending him
from the practice for a period of one year. The court held that a shadow of undue influence is
present when an Advocate buys property of his own client. Against this order P.D. Gupta
filed an appeal before the Supreme court. In the appeal his main contention was that his client
or her legal heirs has not filed any complaint regarding professional misconduct, and the
enquiry conducted based on the complaint by some other person is wrong.

The Supreme Court did not accept this argument and passed the following orders.
“A lawyer owes a duty to be fair not only to his client but also to the court as well as to
the opposite party in the conduct of the case. Administration of justice is a stream which has to
be kept pure and clean.”

1. Any person shall file a complaint regarding professional misconduct against an Advocate.
2. Bar council shall enquire into the allegation of professional misconduct, though the
complaint is filed by a stranger, because, the Bar council is concerned with the conduct of
Advocates.
3. The order passed by the Bar Council of India is confirmed.
In P.D. Gupta v. Ram Murti and Another22 the Bar Council of India was of the view that the
conduct of P.D. Gupta in the above circumstances was unbecoming of professional ethics and
conduct of an Advocate.

KAUSHAL KISHORE AWASTHI V/S BALWANT SINGH THAKUR

Background Thakur was embroiled in a property dispute with his two brothers over ancestral
property after the death of their father. He approached Awasthi to file a suit against one of his
brothers’ attempt to fraudulently sell off the land. After the suit was filed, the parties settled the matter
and requested the court to divide the property. In October 1994, Thakur was declared the owner of
0.03 acres of land, and a kutcha house. The problem of the property dispute was thus resolved. In
2003, Thakur attempted to sell his part of the land using the previous sale deed. At this point,
Awasthi produced an objection letter against the proposed sale deed and objected to the registration of
the deed saying that the Thakur did not have full ownership of the proposed land. This angered
Thakur who said that Awasthi was neither an interested party in the sale deed or the sale, nor was he
authorised by any party to raise objection. The complainant then labelled Awasthi's move as
professional misconduct and filed a complaint. Thakur also said that in 1996 and again in 1999,
Awasthi had lent him and his son a total of Rs 40,000. Thakur had then offered half of his share of the
land as security for the repayment of the amount. Now, Thakur said, Awasthi was objecting to the sale
of the land as his debt had not been cleared. In the Supreme Court, Awasthi's counsel contended that
even if Thakur’s claims were correct, Awasthi had not acted as an advocate, and therefore, his actions
could not amount to committing misconduct.
HOLDING - However, in the current case, the said property was not being sold in the execution of
any decree -- therefore, when Awasthi objected to the sale, he was not participating in the process in
the capacity of an advocate.
The Supreme Court, after a reading of the case, said that "this act has nothing to do with the
professional conduct of the appellant. Therefore, the very initiation of disciplinary proceedings
against the appellant by the State Bar Council was improper and without jurisdiction." Thus, the court
set aside the orders issued by the Bar Council of India.

RD SAXENA v. Balram Prasad Sharma

Facts of the Case
The appellant was appointed as a legal advisor to the Madhya Pradesh State Co-operative
Bank Ltd. (herein referred to as ‘Bank’) in 1990. He used to conduct cases on behalf of the
said bank. Subsequently, on 17.7.1993 the bank terminated the retainers of the appellant; and
requested him to return his files related to the bank. Instead of returning the files, he informed
the bank that only after dues amounting to rupees 97,100/- were paid will he return the files.
Hence, the Bank filed a complaint before the State Bar Council of Madhya Pradesh on
3.2.1994; wherein the appellant contended that he has a right of lien on those files; whereas
the respondent contended that the appellant is guilty of professional misconduct by not
returning the files to his client.
Subsequently, the matter got transferred to the disciplinary committee of Bar Council of
India; wherein the appellant was held guilty of professional misconduct and was imposed
a fine of rupees 1000/-; and also debarred him from practicing for 18 months; and was
directed to return all the case bundles of the client without any delay.

Therefore, the advocate/appellant filled for the appeal before the Supreme Court.

ISSUE:

Does the advocate have a lien for his fees on the litigation papers entrusted to him by his client?

HOLING:

Section 35 of the Advocates Act pertains to misconduct; and accordingly, the refusal of an
advocate to return the file of the client comes under the ambit of professional misconduct.
Therefore, he is liable for the same punishment. However, here the appellant had a bona fide
belief that; he did have a lien and such presumption pertains to restricting harsh punishment
on the appellant.

In the Punishment will be altered to reprimanding the appellant. However, if any person
commits this type of professional misconduct in the future; then Bar Council will determine
respective punishment; and the lesser punishment imposed in this case should not be taken
under the ambit of precedent.

D.P. Chadha V. TN Mishra

Fact:
In this case a client signed blank vakaltnama so that they need not come to court again and again. P
Chadha misused blank vakalatnama and misused it without its clients consent. When suit was in
pendency DP Chadha made sure that client does not come to court by excuses. When client finds out
about false settlement he filed case against him in state bar council of India SBCI.
SBCI found him guilty and barred him for 5 years. On appeal BCI increased punishment to 10years
SC holding:
Lawyer guilty. Since appeal was to decrease punishment BCI should not have increased punishment.
Restored to SCBI judgment.

Shambhu Ram Yadav V. Hanuman Das

Facts:

In this case, a complaint was filed by the appellant against the respondent’s Advocate before the Bar council of
Rajasthan, which was referred to the Disciplinary Committee by the State Bar Council. The complaint against
advocate was that he had written a letter to his client Mahant Rajagiri stating that his another client had
informed him that the concerned judge accepts bribe to give favorable orders, and so he should send an amount
of Rs. 10,000 /- to get decision in his favour, and in case he can influence the judge himself, there is no need to
send Rs. 10,000 /- to be given to the judge. The content of the letter was admitted by the respondent Advocate.
The State Bar Council came to the conclusion that the respondent Advocate was guilty of professional
misconduct and suspended him from practice for a period of 2 years.

The respondent advocate challenged this decision before the Bar Council of India. The disciplinary
committee of Bar Council of India enhanced the punishment and directed that the name of respondent be struck
off from the roll of Advocate and thus he be debarred permanently from the practice of advocacy. The
respondent Advocate filed a review petition before it against this decision under Section 44 of the Advocate Act,
1961. The Bar Council of India accepted the review petition and held that the Advocate is a man of 80 years old
and is continuing practice since 1951. During such a long period of practice, he has never committed any
professional ethics with any ill motive. This is his first mistake. So, the review-petition was allowed and the
earlier order was modified by substituting the punishment of permanently debarring him from practice with that
of remanding him.

On appeal, the Supreme Court held that the earlier order of Bar Council of India had taken into consideration
all the relevant factors for arriving at the conclusion that the Advocate was totally unfit to be a lawyer having
the written such a letter and so the punishment lesser then permanently debarring him cannot be imposed on
guilty respondent. The Court further the held that the power of review does not have empower the Disciplinary
Committee for taking a different view on the same facts of the case. The penalty of permanent debarment of
practice was imposed on the respondent in view of the nature of misconduct committed by the Advocate
respondent, which has been modified in exercise of review power. It is the duty of Bar Council to adhere to the
required standards and on its failure to take appropriate action against the erring Advocates.

RIGHT TO STRIKE
The right of an advocate to strike is a topic that has been hotly debated over decades and a
positional essence of the arguments can be gained from a report titled “Role of the Legal
Profession in Administration of Justice” by the Law Commission of India in 1988. In the report,
it was stated While on the one hand advocates aggressively demand the right to strike on the other
hand voluntary organization and judges among other people maintain that advocates have no right
to go on strike.

Harish Uppal vs Union of India

The petitioner, in this case, was an ex-army officer. In 1972 petitioner was posted in Bangladesh,
where some embezzlement related accusation was put on him and he was brought to the army
court in India, where charges against him were framed and he was court-martialed from his post
and titles along with imprisoned for 2 years.

He filed a pre-confirmation application in a civil Court to review the matter and he received a
reply from the court after a long period of 11 years, when the limitation period of the review has
expired. It was later found that documents along the application got misplaced during a violent
strike by advocates. A special petition was filed by the petitioner to declare strikes by advocates
illegal.

Supreme Court of India came up with the conclusion that

1. Strike by the advocate is unlawful.

 2. A strike will only be permitted in rarest of the rare cases where integrity, respect, and
working of the bar is at the stake.
3. A Silent dissatisfaction can be shown or an interview to the press and media can be
given, till the time it doesn’t hamper the working of the court.

More recently M/s PLR Projects Private Limited v. Mahanadi Coalfields Limited and
Ors. SC has ordered lawyer in Odhisha to stop protesting. They are protesting for
establishment of HC bench in western odhisha. The Bench, comprising Justices Sanjay
Kishan Kaul and Abhay S. Oka, categorically directed the lawyers to resume work from
Wednesday, cautioning that failure to comply with the order and "fall in line", would result in
the Supreme Court holding the recalcitrant lawyers guilty of contempt of court and even the
suspension or cancellation of their licenses.