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Professional ethics

Professional misconduct:
meaning, ambit and
punishment

Submitted by:
M. swarna geetham
h13103
IV yr ba bl (hons)
Section b
SOEL
DOS:

CONTENT

LIST OF CASES
INTRODUCTION
OBJECTIVES
RESEARCH METHODOLOGY
PROFESSIONAL ETHICS- MEANING AND AMBIT
THE BODY OR AUTHORITY EMPOWERED

PROFESSIONAL OR OTHER MISCONDUCT

1. STATE BAR COUNCIL AND ITS DISCIPLINARY COMMITTEE
2. BAR COUNCIL OF INDIA AND ITS DISCIPLINARY COMMITTEE
INSTANCES OF PROFESSIONAL MISCONDUCT BY LAWYERS
CRITIQUE
CONCLUSION
REFERENCES

TO

LIST OF CASES:
Sambhu ram yadav v. hanuman das khatry, 2001 6 SCC 1
State of Punjab v. ram Singh, 1992 SC 2188
Nortanmal chauaisia v. M.R murli, 2004 AIR SCW 2894
P an advocate, AIR 1963 SC 1313
Hikmat Ali khan v. ishwar Prasad arya and others, AIR 2001 SC 2509
P.D. gupta v. ram murti and anr, AIR 1998 SC 283

PUNISH

FOR

Allahabad bank v. girlish Prasad verma BCI Tr. Case no. 49/1993
Munish Chandra geol. v. smt. Sudesh rani JT 2002(1) SC 427
Surendra nath mittal v. daya nand swaroop BCI Tr.Case no. 63/1987
Pratap narain v. Y.P. raheja BCI Tr. Case no. 86/1992
Babu Lal Jain v. subhash Jain, BCI Tr. Case no. 115/1996
John Dsouza v. Edward ani, AIR 1994 SC 975
In re: vinay Chandra mishra (the alleged contemner), (1995)2 SCC 534
Supreme Court bar association v. union of India & others.., (1998)4 SCC 409
Suo motto enquiry v. nand lal balwani, BCI Tr. Case no. 68/1999

INTRODUTION:
Advocacy is a noble profession and an advocate is the most accountable, privileged and
erudite person of the society and his act are role model for the society, which are necessary to
be regulated. Professional misconduct is the behaviour outside the bonds of what is
considered acceptable or worthy of its membership by the governing body of a profession.
Professional misconduct refers to disgraceful or dishonourable conduct not befitting an
advocate. Chapter V of the Advocate Act, 1961, deals with the conduct of advocates. It
describes provisions relating to punishment for professional and other misconducts. Section

35(1) of the Advocate Act, 1961, says where on receipt of a complaint or otherwise a state bar
council has reason to believe that any advocate on its roll has been guilty of professional or
other misconduct, it shall refer the case for disposal to its disciplinary committee. Section 35
empowers the disciplinary committee to reprimand the advocate and suspend the advocate
from practice for such period as it may deem fit or remove the name of the advocate from the
state roll of advocate. However, an appeal against the order of the disciplinary committee
may be preferred, to the bar council of India 1 and thereafter to the supreme court against the
order of the bar council of India2.
Generally legal profession is not a trade or business, its a gracious, noble and
decontaminated profession of the society. Member belonging to this profession should not
encourage deceitfulness and corruption, but they have to strive to secure justice to their
clients. The credibility and reputation of the profession depends upon the manner in which
the members of the profession conduct themselves. Its a symbol of healthy relationship
between bar and bench.
The Advocate Act, 1961 as well Indian bar council are silent in providing exact
definition for professional misconduct because of its wide scope, though under Advocate Act,
1961 to take disciplinary action punishments are prescribed when the credibility and
reputation on the profession comes under a clout on account of acts of omission and
commission by any member of the profession3.

OBJECTIVES:
To understand the meaning and ambit of professional misconduct by lawyers under
Advocate Act, 1961.
To analysis the various instances of professional misconduct and other misconducts
with reference to case laws.
To identify the body or authority empowered to punish for professional misconduct.
To undergo a critical analysis of the provisions of misconduct under Advocate Act,
1961.
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RESEARCH METHODOLOGY:
The nature of the project is purely doctrinal/ non-empirical. It is purely based on data
collected from books, acts, journals and web sources.
The methodology also includes data collected both from primary & secondary
sources, but mainly from secondary sources.
PROFESSIONAL ETHICS- MEANING AND AMBIT:
A person who carries/undertakes the profession is called a professional. Depending on
the profession a person undertakes, he/she is identified with a special name relevant to the
profession.
Misconduct, according to oxford dictionary means a wrongful, improper or unlawful
conduct motivated by premeditated act. It is a behaviour not conforming to prevailing
standards or laws, or dishonest or bad management, especially by persons entrusted or
engaged to act on anothers behalf. The expression professional misconduct in the simple
sense means improper conduct. In law profession misconduct means an act done wilfully
with a wrong intention by the people engaged in the profession. It means any activity or
behaviour of an advocate in violation of professional ethics for his selfish ends. If an act
creates disrespect to his profession and makes him unworthy of being in the profession, it
amounts to professional misconduct. In other word an act which disqualifies an advocate to
continue in legal profession4.
To understand the scope and implication of the term misconduct, the context of the role
and responsibility of an advocate should be kept in mind. Misconduct is a sufficiently wide
expression, and need not necessarily imply the involvement of moral turpitude. Misconduct
per se has been defined in the blacks law dictionary to be any transgression of some
established and definite rule of action, a forbidden act, unlawful or improper behaviour,
wilful in character, a dereliction of duty. In the context of misconduct of an advocate, any
conduct that in any way renders an advocate unfit for the exercise of his profession, or is
likely to hamper or embarrass the administration of justice may be considered to amount to
misconduct, for which disciplinary action may be initiated.
The Supreme Court has, in some of its decisions, elucidated on the concept of
misconduct, and its application. In sambhu ram yadhav v. hanuman das khatry 5, a
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complaint was filed by the appellant against an advocate to the bar council of Rajasthan, that
while appearing in a suit as a counsel, he wrote a letter stating that the concerned judge,
before whom the suit is pending accept bribes, and asked for Rs 10,000 to bribe and influence
the judge to obtain a favourable order. The disciplinary committee, holding that the advocate
was guilty if misconduct, stated that such an act made the advocate totally unfit to be a
lawyer. The Supreme Court, upholding the finding of the Rajasthan bar council held that the
legal profession is not a trade or business. Members belonging to the profession have a
particular duty to uphold the integrity of the profession and to discourage corruption in order
to ensure that justice is secured in a legal manner. The act of the advocate was misconduct of
the highest degree as it not only obstructed the administration of justice, but eroded the
reputation of the profession in the opinion of the public6.
In case of state of Punjab v. ram Singh7, the Supreme Court has explained the term
misconduct in connection with the misconduct of the personnel in the police department
but may be applied in determining whether or not conduct implies to misconduct. The
supreme court has observed that the term misconduct may involve moral turpitude, it must
be improper or wrong behaviour, wilful in character forbidden act, a transgression of
established or definite rule of action or code of conduct, but not mere error of judgment,
carelessness or negligence in performance of duty.
In case of nortanmal chauaisian v. M.R. Murli8, the Supreme Court has held that
misconduct has not been defined in the Advocate Act, 1961. Misconduct, inter alia, 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. It means improper behaviour, intentional wrong doing or deliberate violation
of a rule of standard of behaviour.
In the matter of p an Advocate9, the court has held that an advocate may be punished not
only when he is guilty of professional misconduct but also if he is guilty of other misconduct
which may not be directly concerned with the professional activity as such, may nevertheless
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be of such dishonourable or infamous character as to invite the punishment due to

professional misconduct.
THE BODY OR AUTHORITY EMPOWERED TO PUNISH FOR PROFESSIONAL
OR OTHER MISCONDUCT:
1. State bar council and its disciplinary committee:
Organization:
Section 35 of the Advocate Act makes it clear that 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 its disposal
to disciplinary committee10. It is one of the functions of the state bar council to
entertain and determine the cases of misconduct against the advocate on its roll 11.
Section 9 of the act requires the bar council to constitute one or more disciplinary
committee12. Each of such committee is required to consist of three persons of whom
two shall be person elected by the council from amongst its member and other shall
be a person co-opted by the council from amongst its member advocates who possess
the qualifications specified in the provisions to subsection (2) of section 3 and who
are not members of council and the senior most advocate amongst the members of the
disciplinary committee shall be the chairman thereof.13
Procedure: section 35 provides that after giving the advocate concerned and the
Advocate-General an opportunity of being heard, the disciplinary committee of a state
bar council may make any of the following orders: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 period as it may deem fit;
4. Remove the name of the advocate from the state roll of advocate.14

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It is that when the advocate is suspended from the practice under the aforesaid clause(3),
he shall, during the period of suspension, be debarred from practicing in any court or before
any authority or person in India.15
Section 41: Alteration in the roll of advocates
Where an order is made reprimanding or suspending an advocate, a record of the
punishment shall be entered against his name in the state roll and where an order is made
removing an advocate from practice, his name shall be struck off the state roll.
Section 36-A: Disposal of the 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 withdraw 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 Indic.
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.

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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 of being heard.
2. Bar council of India and its disciplinary committee:
Organization: section 36 of the Advocate Act empowers the bar council of India to
refer, in certain circumstances, the case for disposal to its disciplinary committee.
Section 9 provides that the bar council shall constitute one or more disciplinary
committees, each of which shall consist of three persons of whom two shall be
persons elected by the council from amongst its members and the other shall be a
person elected by the council amongst advocates who possess the qualifications
specified in the provisions to sub-section (2) of section 3 and who are not members of
the council and the senior most advocate amongst the members of disciplinary
committee shall be the chairman thereof.
Powers: section 42 deals with the powers of the disciplinary committee of a bar
council. The provisions of section 42 have already been stated in context of powers of
the disciplinary committee of the state bar council. Section 42-A makes it clear that
the provisions of section 42 shall, so far as may be, apply in relation to the
disciplinary committee of the bar council of India. Section 43 makes it clear that the
disciplinary committee of the bar council of India may make such order as to the costs
of any proceedings before it as it may drew fit and any such order shall be executable
as if it were an order of the supreme court.
Remedy against the order of punishment by the bar council of India:
Section 48-AA: review
The bar council of India or any of its committee, other than its disciplinary
committee, may on its own motion or otherwise, review any order, within 60 days of
the date of that order, passed by it under the Advocate Act.
Section 38: appeal to the Supreme Court
Any person aggrieved by an order by the disciplinary committee of the bar council
of India u/d section 36 or section 37 or the attorney general of India or the advocate
general of the state concerned, as the case may be, may within 60 days of the date on
which the order is communicated to him, prefer an appeal to the supreme court and
the supreme court may pass such order including an order varying the punishment
awarded by the disciplinary committee of the bar council of India thereon as it deems
fit. However no order of the disciplinary committee of the bar council of India shall
be varied by the Supreme Court so as to prejudicially affect the person aggrieved
without giving him a reasonable opportunity of being heard.
INSTANCES OF PROFESSIONAL MISCONDUCT BY LAWYERS:

1. Attempt of murder:
Hikmat Ali khan v. ishwar Prasad arya and others16
Ishwar Prasad arya was an advocate practising at badaun in U.P he assaulted his
opponent, radhey shyam in the court-room of munsif as badaun with a knife. After
investigation he was prosecuted for offences u/d section 307 IPC and section 25 of the
Arms Act and he was sentenced for 3 years imprisonment.
The appellant Hikmat Ali khan complained against the advocate and prayed for fresh
inquiry. In the said proceedings, the advocate appeared and files his return statement but
thereafter he did not appear. Hence, the bar council of U.P proceeded ex-parte against him
and the disciplinary committee of the state bar council of U.P debarred for a period of 3
years. The advocate again appealed to the bar council of India and it had set aside the
punishment. Then Hikmat Ali filed appeal to the Supreme Court. The Supreme Court held
that his conduct was such that his name should be removed from the state rule of advocate as
he was found guilty of an offence attempting to commit murder and convicted for it and as he
was unworthy of remaining in the profession.17
2. Informing about bribe:
Shambhu ram yadhav v. hanuman das khatry18
The court upheld the order of bar council of India dated 31st July 1999, which held
that the appellant has served as advocated for 50 years and it was not expected of him
to indulge in such a practice of corrupting the judiciary or offering bribe to the judge
and he admittedly demanded Rs.10, 000/- from his client and he orally stated that
subsequently order was passed in his clients favour. This is enough to make him
totally unfit to be a lawyer by writing the letter in question. We cannot impose any
lesser punishment than debarring him permanently from the practice. His name should
be struck off from, the roll of advocates maintained by the bar council of Rajasthan.
Hereafter the appellant will not have any right to appear in any court of law, tribunal
or any authority. Court impose a cost of Rs 5,000/- to the appellant which should be
paid by the appellant to the bar council of India which has to be within two months.
3. Purchase of the property in dispute of the client:
P.D. Gupta v. Ram Murti and Anr19
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Facts: one srikishan dass died leaving behind extensive immovable properties.
Claims to the said properties were made by one vidyawati claiming to be sister of the
deceased, one ram murti and two others who claimed them to be heir of the deceased.
Later they 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 u/d section 36-B of the Advocate 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.
4. Non filing of the case or filing of the case with nominal court fees:
Allahabad bank v. girlish Prasad verma20
Facts: In this case complainant Allahabad bank filed complaint against the advocate
garish Chandra verma alleging the out of the 52 suits which were given to the
advocate for filing in the court 50 suits were filed with nominal court fees and 2 suits
were not filed at all and the advocate misappropriated the sum paid to him by the
complainant for the purpose of advocate misappropriated the sum, the sum paid to
him by the complainant for the purpose of court fees.
Held: U.P bar council disciplinary committee held that the advocate has
misappropriated the amount of the court fees and further ordered for the striking of
the name of the advocate from the roll of the U.P bar council. The committee made it
clear that legal profession is a noble profession and its members must set an example
of conduct worthy of emulation.
5. Deliberate delay in filing of the suit:
Prof. Krishnarai go swami v. vishwanath D. mukashikar21
Facts: In this case the appellant advocate made a delay in filing in filing the suit and
also made a delay in moving the interim application due to which the complainant
suffered huge losses. The complainant gave two written notices to the appellant
advocate for the return of the papers so that he could engage separate lawyers but the
appellant advocate did not respond. It was also alleged by the complainant that the
advocate did this deliberately in connivance with the other side.

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Held: The disciplinary committee of the bar council of Maharashtra and Goa found
him guilty of professional misconduct and imposed punishment of suspension of
licence for three years.
6. Suppression of material facts with intention to harass poor persons:
Munish Chandra geol. v. smt. Sudesh rani22
Facts: In this case the respondent advocate filed suits for the eviction of the tenants
by suppressing the fact of an earlier compromise decree by which the tenants were
declared as owners. The respondent advocate should have disclosed the material facts
since his wife and he himself were involved in the compromise of the suits.
Held: The respondent advocate was held guilty of having committed professional as
well as other misconduct. The committee ordered that his licence to practice would be
suspended for a period of 2 years.
7. Manipulation of the judgment and the decree:
Surendra nath mittal v. daya nand swaroop23
Facts: In this case the respondent made manipulation in operative part of the
judgement and decree by adding the words mai sood i.e including interest.The
respondent advocate however denied the allegation and contended that he had not
committed any offence.
Held: the disciplinary committee found the advocate guilty and held that it was the
respondent advocate who had added the words subsequently and that the same
amounts to professional misconduct. The committee ordered for his suspension for
one year.

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