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CLINICAL PROJECT

On

Professional

misconduct
SUBMITTED BY:Rabia singh B.A.LL.B(H), X Sem

ACKNOWLEDGEMENT
I have a great pleasure in expressing deep sense of indebtness and gratitude to

my teacher, for her guidance on her valuable guidelines , meticulous

supervision and perpetual inspiration which provided me the strength and zeal

to complete the project work .

I also extent my gratitude to all people who have helped me in my project and to

the learned authors whose works I have consulted and referred on many

occasions. Without any of above people my work would have been incomplete

and unsatisfactory, therefore thank you once again .

Rabiasingh.
CONTENTS OF THE PROJECT

1. Introduction to professional misconduct .

I. Ethics

II. Need for a code of legal ethics

2. Meaning and Definition of professional misconduct.

 What amounts to misconduct?

3. Law and Morality :

 With respect to Lawyer’s role in a society .

 Law and freedom.

 Law and justice.

 Influence of morals on law.

 Growing importance of morals.

4. Provisions of 1961 Act

 Roles and responsibility of a lawyer.

 Code of conduct prescribed for an advocate

5. Instances of professional misconduct

 Contempt of court
 Misbehaviour as misconduct

 Stike as a misconduct.

 Breach of trust of misappropriation of assets of client

6. Procedure followed on notice of a misconduct.

7. Critique

8. Conclusion

9. Bibliography

INTRODUCTION
PROFESSIONAL MISCONDUCT

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 bounds 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 advocat. Chapter

V of the Advocate Act, 1961, deals with the conduct of Advocates. It describes

provisions relating to punishment for professional and other misconducts.

Section 35(1) of the Advocate Act, 1961, says, where on receipt of a complaint

or otherwise a State Bar Council has reason to believe that any advocate on its

roll has been guilty of professional or other misconduct, it shall refer the case

for disposal to it disciplinary committee. Generally legal profession is not a

trade or business, it’s a gracious, noble, and decontaminated profession of the

society. Members belonging to this profession should not encourage

deceitfulness and corruption, but they have to strive to secure justice to their

clients. The credibility and reputation of the profession depends upon the

manner in which the members of the profession conduct themselves. It’s a

symbol of healthy relationship between Bar and Bench. Lawyer's profession has

been regarded as an honourable or noble profession by the world for several

centuries. It is a learned profession par excellence. No other profession touches


human life at so many points than law. It has always been held in high esteem

and its members have played an enviable role in public life. It is different from

other professions in that what the lawyers do affects not only the individual but

also the administration of justice, which is the foundation of any civilised

society. Canons of professional ethics are the most prestigious heritage of the

Bar. The greatness and honour of the legal profession is due to the canons of

conduct governing the relations of lawyers interse and with others in their

professional capacities. It is through adherence to highest standards of

professional ethics that the stature of the Bar can be enhanced. Unless the

lawyer observes the highest standards of professional ethics he cannot earn the

respect of the community nor do his peers in the profession accept him as an

outstanding lawyer. Although the entry to the profession can be had by

acquiring merely the qualification of technical competence, the honour as a

professional has to be maintained by its members by exemplary conduct both in

and outside the court. If people lose confidence in the profession on account of

the deviant ways of some of its members, it is not only the profession which

will suffer but also the administration of justice as a whole. The legal profession

in India is passing through a critical phase and the declining standards of the

lawyers are the talk of the day. The present trend unless properly checked is

likely to lead to a stage where the system will be found wrecked from within

before it is wrecked from outside. It is for the members of the profession to

examine and take the corrective steps in time. The legal profession regulates the
conduct of its practitioners with the help of a set of binding rules evolved in the

course of its developments in the context of other professions. The entry into the

profession is regulated, internal discipline is ensured and the very conduct of its

members is regulated by a set of rules called professional ethics. These set of

rules take care of disciplining and even removing its members from the

profession. Further the rights of the lawyers are also to be protected. This is

because un less and until their rights are protected and certain professional

privileges are given, they cannot fairly and fearlessly discharge their

responsibilities. These can be achieved only through an organised Bar. Thus in

India, Parliament in its wisdom has entrusted the responsibility of taking

disciplinary proceedings against deviant lawyers to the Bar Councils. If there is

any erosion in the Bar it indicates some flaw in the administration of

disciplinary powers by the Bar Councils themselves. There is need to tighten the

exercise of disciplinary control over erring members. Since lawyers behave as

officers of court in discharging their functions, people have reposed on them

trust and confidence. The active participation of the Bar Associations, is not

only desirable but also essential to fortify the efforts of the Bar Councils in

matters of enforcement of discipline among members of the Bar. Further, Bar

Associations can sponsor schemes offering the services of its members to needy

clients on reasonable fees and monitor their conduct for the effective

administration of justice. Even though India has an organised Bar and

disciplinary authorities to regulate the profession we cannot run away from the
reality that the reputation of the Bar is today at its lowest ebb. There are many

reasons for the same. The main reason is the deviant behaviour from the

accepted standards of professional ethics. But this deviant behaviour is mostly

due to actual ignorance of ethical requirements. Professional misbehaviour can

be minimized through self-policing and legal education. The Bar Associations

and the Bar Councils through its disciplinary committees have great

responsibility in preserving the nobility and honour of the profession.

The Advocates Act, 1961 as well Indian Bar Council are silent in providing

exact definition for professional misconduct because of its wide scope, though

under Advocates Act, 1961 to take disciplinary action punishments are

prescribed when the credibility and reputation on the profession comes under a

clout on account of acts of omission and commission by any member of the

profession. 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 the persons which 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 a misdemeanour, impropriety,

mismanagement, offense, but not negligence or carelessness.1From the

definition, it is now clear that the act of professional misconduct is done purely

with an intention of getting unlawful gains. The Advocates Act, 1961 and the

Indian Bar Council play a vital role in providing rules and guidelines regarding

the working, code of conduct and such other matters concerning lawyers and

advocates in India.

Professional Ethics: Nature and Scope Ethics is essentially a moral science. It is

that branch of philosophy, which is only concerned with human character and

conduct. Ethics condemns every sort of falsehood whereas law condemns and

punishes only those which affect the functioning of the society, state and

government. What may be legally wrong may be ethically right and vice versa.

In legal profession, the two wings of administration of justice, namely, the

Bench and the Bar have to work according to certain norms, which are

collectively called legal ethics. Legal ethics mean : "Usages and customs among

members of the legal profession, involving their moral and professional duties

towards one another, towards clients. and towards the courts; that branch of

moral science which treats of the duties which a member of the legal profession

owes to the public, to the court, to his professional brethren, and to his client"'.

Retrieved on: http://www.legalservicesindia.com/article/article/professional-


1

misconduct-by-lawyers-in-india-1621-1.html
The rules of conduct laid down for the members of the Bar are referred to as

professional ethics of lawyers. So, professional ethics is that branch of moral

science, which lays down certain duties for the observance of its members,

which he owes, to the society; to the court; to the profession; to his opponent; to

his client and to himself. Legal ethics are not exclusively rule-based. The

customs and cultures of lawyers, to the extent that they have some effect on the

delivery of legal services, should also be included within an extended

definition.' Lawyers' allegiance to these ethical values and canons of conduct

have been shaped through ages. The ethics of the profession developed as the

profession grew in the stature and assumed its dignified status as a strong arm of

our judicial system. Such canons of conduct serve as a guide to understand the

social as well as professional responsibilities of a lawyer.

The four interwoven ethics or conceptions of what a lawyer ought to do can be

discovered in lawyers' ethical debates, treatises, and judicial pronouncements.

They are' : The ideal of devoted service to clients in a legal system where

citizens need advice and representation to use the legal system (the advocacy

ideal). The ideal of fidelity to the law and justice if the system is not to be

sabotaged by clients who will pay a lawyer to anything (the social responsibility

ideal). An ideal of willingness to work for people and causes that are usually

excluded from the legal system (the justice ideal). The ideal of courtesy,

collegiality, and mutual self-regulation amongst members of the profession (the


ideal of collegiality). These four basic ideals can be found in the U.S. code of

legal ethics.4 In India, the rules made by the Bar Council of India under Section

49(1) (c) of the Advocates Act, 1961 prescribe the standards of professional

conduct and etiquette of Advocates.' The violation of these standards of conduct

will affect the prestigious image of the profession and hence treated as

professional misconduct.

Thus an advocate has a four-fold obligation, the obligation to his clients to be

faithful to them, the obligation to the profession not to bring down its fair name

or injure its credit by any act of his and an obligation to the court as a

dependable arm of the missionary through which justice is administered. He has

also an obligation to the public at large to protect, to preserve and to save justice

for the maintenance of a welfare society. But the Bar Council Rules are silent

with respect to certain conduct usually resorted to by the lawyers, which affects

the dignity and image of the profession. The Preamble of Chapter II of Part VI

of the Bar Council Rules says that non specific mentioning of any particular

conduct shall not be construed as a denial of the existence of that etiquette.' For

example, the Bar Council Rules are silent about the unethical practices followed

by lawyers like bench fixation and giving opinions through media about

pending cases.' These practices have not been challenged before any court so

far. But such practices need to be curtailed.

Need for a Code of Legal Ethics


The reputation of the Bar depends more on the integrity and sense of

responsibility of its members than on their learning and knowledge of technical

rules. Mere judicial control is not enough to secure respect for professional

observances by the members of the Bar. Judicial supervision, to be effective, is

to be supplemented by means of extra- judicial agencies. 10 In the legal

profession, as it is with every other profession, professional ethics serves as a

guidance to the young man entering into practice to show the right way he

should go, so that, in future, he will not depart therefrom. Lawyers are used to

the idea of written 'disciplinary codes'. These set a lowest common denominator

of conduct below which the deviants are punished. They may be contrasted with

written aspirational codes' which set out the highest standard to which all should

strive. Before saying that there is a need for a code of legal ethics, one may have

to look at the 'advisability and practicability' of the adoption of such a code. A

code of legal ethics is not only advisable, but under existing conditions, is of

very great importance for several reasons like: a) Legal profession is necessarily

the keystone of the arch of Government. So if this key stone is weakened by

increasingly subjecting it to corroding and demoralising influence of those who

are controlled by greed, gain or other unworthy motive, then the arch will

definitely fall. The maintenance of the shrine of justice pure and unsullied is

possible only if the conduct and motives of members of legal profession are

what they ought to be. For this a code of ethics, adopted after due deliberation,

11) Members of the Bar, like judges, are officers of the courts. So like judges,
they should hold office only during good behaviour. 'Good behaviour' should be

defined and measured by such ethical standards, however high, as are necessary

to keep the administration of justice pure and unsullied. Such standards may be

crystallised into a written code of professional ethics. A lawyer failing to

conform thereto should not be permitted to practice and retain membership in

professional organization." But what is professional misconduct varies from

case to case. Misconduct in a particular instance need not be misconduct in

another instance. Codification of legal ethics has many advantages. Some of

them are the following: The main reason for lawyer's deviant behaviour from

the honourable and accepted standard of conduct is not intentional

delinquencies. It is rather as a result of ignorance of the ethical requirement of

the situation. The existence of a code of professional ethics will furnish an

authoritative statement of ideals by which every lawyer, when in doubt, may be

guided. Codification will tend to raise and strengthen the standard of

professional honour. Any departure from the standards prescribed by the

organised Bar will lead to a loss of professional reputation and no lawyer in the

ordinary circumstances is likely to risk it. Professional character cannot be built

in a day. So in order to form a good character, it is necessary that a young

lawyer should have correct standards of conduct held up before him. These

rules should exist in a simple and readily accessible form, to influence his

conduct from the commencement of his career. A code of this kind will be
helpful to the bar councils and courts in judging and regulating acts of the

lawyer.

The advantage of a disciplinary code is its ability to sanction delinquent lawyers

while not intruding on the individual's moral space. It addresses the commonly

expressed concern that we should not police what people think, but what they

do. The idea is to provide clear rules with sanctions for unacceptable behaviour,

but beyond that to leave lawyers free to do as they (or their clients) please. But

to a large extent this turns ethics into merely a form of legal regulation where

the rules are made by law societies. Even then, this makes it possible for the

regulators to know the subject better and for those regulated to make a greater

commitment to the standards of the profession. One of the objections to a code

is the danger of it being regarded as exhaustive and anything not coming within

its express prohibition is allowable. It is not possible to formulate a code of

legal ethics, which will provide the lawyer with a specific rule to be followed in

all the varied relations of his professional life." The maximum that can be done

is to state with as much particularity as possible and with due regard to custom

and tradition those general principles which experience has taught us to be

observed, so that the profession occupies its high place in the social structure.

This makes it possible to fulfil the important and responsible duties, which fall

to its lot. It would be a folly to assume that these canons of ethics are sufficient

enough in laying down rules of conduct, which will be sufficient for all
purposes and under all circumstances. This is because many duties quite as

important and equally imperative though not specified will arise in the course of

almost every lawyer's practice.


Meaning and Definition :

WHAT AMOUNTS TO PROFESSIONAL MISCONDUCT?

Profession is a vocation requiring some significant body of knowledge that is

applied with high degree of consistency in the service of some relevant

segmentof society, by Hodge and Johnson. Occupation especially one requiring

advanced education and special training by A. S. Hornby.

It is different from other types of jobs, in the sense that it requires skills and

these skills will be improved with experience.

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

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

2) Formalized method of acquiring training and experience

3) The establishment of representative organization with professionalism as its

goal.

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


5) The charging of fees based on services but with due regards for the priority

of service over the desire for monetary rewards.

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 behavior not

conforming to prevailing standards or laws, or dishonest or bad management,

especially by persons entrusted or engaged to act on another's behalf. The

expression professional misconduct in the simple sense means improper

conduct. In law profession misconduct means an act done willfully with a

wrong intention by the people engaged in the profession. It means any activity

or 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

anact which disqualifies an advocate to continue in legal profession.

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

Black’s Law Dictionary to be “any transgression of some established and

definite rule of action, a forbidden act, unlawful or improper behavior, willful in

character, a dereliction of duty.” In a different context, the Supreme Court has

opined that the word “misconduct” has no precise meaning, and its scope and

ambit has to be construed with reference to the subject matter and context

wherein the term occurs. In the context of misconduct of an advocate, any

conduct that in any way renders an advocate unfit for the exercise of his

profession, or is likely to hamper or embarrass the administration of justice may

be considered to amount to misconduct, for which disciplinary action may be

initiated.

Darling J, defined the expression professional misconduct in, In re A Solicitor

ex parte the law society as, It is shown that the advoate in the pursuit of his

profession has done some thing with regard to it which would be reasonably

regarded as disgraceful or dishonourable by his professional brethren of good

repute and competeny, then it is open to say that he is guilty of professional

misconduct.

Misconduct is sufficiently comprehensive to include misfeasance as well as

malfeasance and is applied to the professional people, it include unprofessional


acts even though they are not inherently wrongful. The professional misconduct

may consist the fact in any conduct, which tends to bring reproach on the legal

profession or to alienate the favourable opinion which the public should

entertain concerning it.

In state of Punjab v Ram Singh2the supreme Courtheld that the term

misconduct may involve moral turpitude, it must be improper or wrong

behaviour, unlawful behaviour, willful in character, a forbidden act, a

transgression of established and definite rule of action or code of conduct, but

not mere error of judgement, carelessness or negligence in performance of duty.

The Supreme Court has, in some of its decisions, elucidated on the concept

of‘misconduct’, and its application. In Sambhu Ram Yadav v. Hanuman Das

Khatry,3 a complaint was filed by the appellant against an advocate to the

BarCouncil of Rajasthan, that while appearing in a suit as a counsel, he wrote a

letter stating that the concerned judge, before whom the suit is pending accepts

bribes, and asked for Rs. 10,000 to bribe and influence the judge to obtain a

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

2
AIR 1992 SC, 2188
3
2001 6 SCC 1. 165
belonging to the profession have a particular duty to uphold the integrity of the

profession and to discourage corruption in order to ensure that justice is secured

in a legal manner. The act of the advocate was misconduct of the highest degree

as it not only obstructed the administration of justice, but eroded the reputation

of the profession in the opinion of the public.

In another case, NoratanmanCourasia v. M. R. Murali the Supreme

Courtexplored the amplitude and extent of the words “professional misconduct”

in Section 35 of the Advocates Act. The facts of the case involved an advocate

(appearing as a litigant in the capacity of the respondent, and not an advocate in

a rent control proceeding) assaulted and kicked the complainant and asked him

to refrain from proceeding with the case. The main issue in this case was

whether the act of the advocate amounted to misconduct, the action against

which could be initiated in the Bar Council, even though he was not acting in

the capacity of an advocate. It was upheld by the Supreme Court that a lawyer is

obliged to observe the norms of behavior expected of him, which make him

worthy of the confidence of the community in him as an officer of the Court.

Therefore, inspite of the fact that he was not acting in his capacity as an

advocate, his behavior was unfit for an advocate, and the Bar Council was

justified in proceeding with the disciplinary proceedings against him.

It may be noted that in arriving at the decision in the case, the Supreme Court

carried out an over-view of the jurisprudence of the courts in the area of


misconduct of advocates. It reiterated that the term “misconduct” is incapable of

a precise definition. Broadly speaking, it envisages any instance of breach of

discipline. It means improper behavior, intentional wrongdoing or deliberate

violation of a rule of standard of behavior. The term may also include wrongful

intention, which is not a mere error of judgment. Therefore,

“misconduct”,though incapable of a precise definition, acquires its connotation

from the context, the delinquency in its performance and its effect on the

discipline and the nature of duty.

In N.G. Dastane v. Shrikant S. Shind 4 where the advocate of one of the

partieswas asking for continuous adjournments to the immense inconvenience

of the opposite party, it was held by the Supreme Court that seeking

adjournments for postponing the examination of witnesses who were present

without making other arrangements for examining such witnesses is a

dereliction of the duty that an advocate owed to the Court, amounting to

misconduct.

Ultimately, as it has been upheld and reiterated that “misconduct” would cover

any activity or conduct which his professional brethren of good repute and

competency would reasonably regard as disgraceful or dishonourable. It may be

noted that the scope of “misconduct” is not restricted by technical

4
AIR 2001 SC 2028
interpretations of rules of conduct. This was proven conclusively in the case

of Bar Council of Maharashtra v. M.V. Dahbolkar.5

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 behavior 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 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 behavior. 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-


5
AIR 1976 SC242
specific, dynamic sense, which captures the role of the advocate in the society at

large.

LAW & MORALITY

With respect to lawyers role in society :


LAWYER’S PRESPECTIVE

Many legal philosophers start from an unstated basic intuition:

"The law has to do with those considerations which it is appropriate for the

courts to rely upon in justifying their decisions."

Most theorists tend to be by education and profession lawyers and their

audience often consists primarily of law students. Quite naturally and

imperceptibly they adopted the lawyers' perspective on the law. Lawyers'

activities are dominated by litigation in court, actual or potential. They not only

conduct litigation in the courts. They draft documents, conclude legal

transactions, advise clients, etc., always with an eye to the likely outcome of

possible litigation in which the validity of the document or transaction or the

legality of the client's action may be called into question. From the lawyer's

point of view the law does indeed consist of nothing but considerations

appropriate for courts to rely upon.

Hans Kelsen says he follows a combination of the linguistic approach and the

institutional approach: "Any attempt to define a concept in question. In defining

the concept of law we must begin by examining the following questions:


Do the social phenomena generally called law present a common characteristic

distinguishing them from other social phenomena of a similar kind?

The clue to the methodological approach Kelsen was in fact pursuing is in his

insistence that legal theory must be a pure theory. Kelsen regarded it as doubly

pure. It is pure of all moral argument and it is pure of all sociological facts.

Kelsen indicates his belief that the analysis of legal concepts and the

determination of the content of any legal system depends in no way at all on the

effects the law has on the society or the economy, nor does it involve

examination of people's motivation in obeying the law or in breaking it.

For Kelsen, it is self-evident that legal theory is free of all moral considerations.

The task of legal theory is clearly to study law. If law is such that it cannot be

studied scientifically then surely the conclusion that if the law does involve

moral considerations and therefore cannot be studied scientifically, then legal

theory will study only those aspects of the law which can be studied

scientifically.

Since Kelsen has no good reason to insist that legal theory should be free from

moral consideration, he has no good reason to delimit the law in the way he

does.
Law and Morality

In the modern world, morality and law are almost universally held to be

unrelated fields and, where the term "legal ethics" is used, it is taken to refer to

the professional honesty of lawyers or judges, but has nothing to do with the

possible "rightness" or "w rongness" of particular laws themselves.

This is a consequence of the loss of the sense of any "truth" about man, and of

the banishment of the idea of the natural law. It undermines any sense of true

human rights, leaves the individual defenseless against unjust laws, and opens

the way to different forms of totalitarianism. This should be easy enough to see

for a person open to the truth; but many people's minds have set into superficial

ways of thinking, and they will not react unless they have been led on, step by

step, to deeper reflection and awareness.

Relationship between Law and Morality or Ethics

Law is an enactment made by the state. It is backed by physical coercion. Its

breach is punishable by the courts. It represents the will of the state and realizes

its purpose.

Laws reflect the political, social and economic relationships in the society. It

determines rights and duties of the citizens towards one another and towards the
state.

It is through law that the government fulfils its promises to the people. It

reflects the sociological need of society.

Law and morality are intimately related to each other. Laws are generally based

on the moral principles of society. Both regulate the conduct of the individual in

society.

They influence each other to a great extent. Laws, to be effective, must

represent the moral ideas of the people. But good laws sometimes serve to rouse

the moral conscience of the people and create and maintain such conditions as

may encourage the growth of morality.

Laws regarding prohibition and spread of primary education are examples of

this nature.Morality cannot, as a matter of fact, be divorced from politics. The

ultimate end of a state is the promotion of general welfare and moral perfection

of man. It is the duty of the state to formulate such laws as will elevate the

moral standard of the people. The laws of a state thus conform to the prevailing

standard of morality. Earlier writers on Political Science never made any

distinction between law and morality.


Plato's Republic is as good a treatise on politics as on ethics. In ancient India,

the term Dharma connoted both law and morality. Law, it is pointed out, is not

merely the command of the sovereign, it represents the idea of right or wrong

based on the prevalent morality of the people.

Moreover, obedience to law depends upon the active support of the moral

sentiments of the people. Laws which are not supported by the moral

conscience of the people are liable to become dead letters.

For example laws regarding Prohibition in India have not succeeded on account

of the fact that full moral conscience of the people has not been aroused in favor

of such laws.

As Green put it, "In attempting to enforce an unpopular law, a government may

be doing more harm than good by creating and spreading the habit of

disobedience to law. The total cost of such an attempt may well be greater than

the social gain."

Although law and morality arc interdependent yet they differ from each other in

their content, definiteness and sanction.

Some points of distinction between law and morality may be brought out as
follows:

Law:

The Oxford English Dictionary defines the law as:

‘the body of rules, whether proceeding from formal enactment or from custom,

which a particular state or community recognizes as binding on its members or

subjects.’

That this should be regarded as the definition of law for the English language is

evidence of the influence legal positivism has upon the philosophy of law in our

culture. The central themes of positivism are the contentions: firstly, that the

existence of law rests upon identifiable social facts and, secondly, that it is

necessary to maintain a conceptual distinction between law and morality. In this

essay I will examine the positivist assertion that law is identifiable

independently of morality, with a particular focus on the theory of H.L.A Hart.

1. Law regulates and controls the external human conduct. It is not concerned

with inner motives. A person may be having an evil intention in his or her mind

but law does not care for it.

Law will move into action only when this evil intention is translated into action

and some harm is actually done to another person.


2. Law is universal in a particular society. All the individuals are equally

subjected to it. It does not change from man to man.

3. Political laws are precise and definite as there is a regular organ in every state

for the formulation of laws.

4. Law is framed and enforced by a determinate political authority. It enjoys the

sanction of the state. Disobedience of law is generally followed by physical

punishment.

The fear of punishment acts as a deterrent to the breach of political law.

5. Law falls within the purview of a subject known as Jurisprudence.

Morality:

1. Morality regulates and controls both the inner motives and the external

actions. It is concerned with the whole life of man.

The province of law is thus limited as compared with that of morality because

law is simply concerned with external actions and docs not take into its fold the

inner motives.
Morality condemns a person if he or she has some evil intentions but laws are

not applicable unless these intentions are manifested externally.

2. Morality is variable. It changes from man to man and from age to age. Every

man has his own moral principles.

3. Moral laws lack precision and definiteness as there is no authority to make

and enforce them.

4. Morality is neither framed nor enforced by any political authority. It does not

enjoy the support of the state. Breach of moral principles is not accompanied by

any physical punishment.

The only check against the breach of morality is social condemnation or indi-

vidual conscience. 'Moral actions are a matter of choice of inner conscience of

the individual, laws are a matter of compulsion'.

5. Morality is studied under a separate branch of knowledge known as Ethics.

We may conclude the discussion in the words of Gilchrist, "The individual

moral life manifests itself in manifold ways. The state is the supreme condition
of the individual moral life, for without the state no moral life is possible.

The state, therefore, regulates other organizations in the common interest. The

state, however, has a direct function in relation to morality."

Points to Remember

Laws may be defined as external rules of human conduct backed by the

sovereign political authority. Law and morality are intimately related to each

other.

Laws are generally based on the moral principles of a particular society.

Some points of distinction may be brought out as follows:

(a) Laws regulate external human conduct whereas morality mainly regulates

internal conduct.

(b) Laws are universal; morality is variable.


(c) Laws are definite and precise while morality is variable.

(d) Laws are upheld by the coercive power of the state; morality simply enjoys

the support of public opinion or individual conscience.

(e) Laws are studied under Jurisprudence but morality is studied under Ethics.

Law and freedom

Both law and morality imply human freedom. Clearly, without freedom one

cannot speak of morality. But the same holds for law, for if it were

automatically and not freely obeyed, men would be mere robots. Law is not a

simple indication of what happens, such as the law of physics; it is an

admonition to free persons about what they are required to do if they wish to

live freely and responsibly in society; and it normally carries with it a sanction

or punishment to be imposed on whoever is shown to have acted against given

norms of conduct. Just law, properly understood, appeals to freedom.

Nevertheless one of the most generalized liberal ideas is that law is by nature

the enemy of freedom. ServaisPinckaers holds that Catholic moralists have gone

through many centuries under the influence of this mentality which has led, by

reaction, to the anti-law approach of much of contemporary moral theology. In

this view, law and freedom were seen as "two opposed poles, law having the
effect of limitation and imposing itself on freedom with the force of obligation.

Freedom and law faced each other as two proprietors in dispute over the field of

human actions. The moralists commonly said, "Law governs this act, freedom

governs that one..." The moralists were traditionally the representatives of the

moral law, and their mission was to show to conscience how to apply it in a

particular situation, in a "case of conscience". Today we witness a strong

tendency to invert the roles; the moralists now regard themselves as defenders

of freedom and of personal conscience" [as against the law].

Law and justice

Law cannot attempt to regulate the purely interior sphere of personal conduct;

morality can. Human or civil law is connected with external actions, precisely

insofar and because they impinge on the rights or lawful actions of others.

Hence the necessary connection of law with justice. For the regulation of

interpersonal relations must work from the basic principle of justice: "to each

his due". Hence arises the fundamental question of what is due to each one, and

from this the further question of human rights.

To each his due. Something is due to each. This is the sense of equality before

the law. "The possibility of giving his or her due not only to a relative, friend,

citizen or fellow believer, but also to every human being simply because he is a

person, simply because justice requires it, is the honor of law and of jurists. If
there is an expression of the unity of the human race and of equality between all

human beings, this expression is rightly given by the law, which can exclude no

one from its horizon under pain of altering its specific identity".

Even for those who see law and freedom in mutual opposition, the whole

concept of law is essentially connected with that of justice. The ancient

principle lexiniusta non estlex (an unjust law is not a law), is at the basis of so

many modern protests in the name of freedom. "This law is discriminatory,

therefore it is not just". But justice is a moral concept; so these protests bear out

the intrinsic connection between law and morality,

"There is another crucial link between the virtues and law, for knowing how to

apply the law is itself possible only for someone who possesses the virtue of

justice".

'The law must respond to "living situations"...' Very good, but not in the sense

that it must take the situation as its norm. Justice must remain the norm, and

sometimes the law must regain ground for justice.

Influence of Morals on Law

Law and Morals act and react upon and mould each other. In the name of

‘justice’, ‘equity’, ‘good faith’, and ‘conscience’ morals have in-filtered into the

fabrics of law. In judicial law making, in the interpretation of legal precepts, in


exercising judicial discretion (as in awarding punishment) moral considerations

play a very important role. Morals work as a restraint upon the power of the

legislature because the legislature cannot venture to make a law which is

completely against the morals of the society. Secondly, all human conduct and

social relations cannot be regulated and governed by law alone. A considerable

number of them are regulated by morals. A number of action and relations in

the life of the community go on very smoothly without any intervention by law.

Their observance is secured by morals. So far as the legal rules are concerned, it

is not the legal sanction alone that ensure their obedience but morals also help in

it. Thus, morals perfect the law. ‘In marriage, so long as love persist, there is

little need of law to rule the relations of the husband and wife – but the solicitor

comes in through the door, as love flies out of the window.’

Growing Importance of Morals

Now, sociological approach has got its impact upon the modern age. This

approach is more concerned with the ends that law has to pursue. Thus,

recognized values, or, in other words, morals (of course the morals of the

modern age) have become a very important subject of study for good law

making. On international law also morals are exercising a great influence. The
brutalities and inhuman acts in World Wars made the people to turn back to

morals and efforts are being made to establish standards and values which the

nations must follow. Perhaps there is no other so forceful ground to justify the

Nuremberg Trials as morals. If the law is to remain closer to the life of the

people and effective, it must not ignore morals.

Provisions in Advocates act 1961

The advocates act 1961 is a comprehensive legislation that regulates the legal

practice and legal education in India. It envisages for the establishment of Bar

Council of India and State Bar Councils with various disciplinary committees to

deal with misconduct of the advocates. It also provides for the provisions

relating to the admission and enrolment of advocates and advocates right to

practice.
Chapter V containing sections 35 to 44 deals with the conduct of the advocates.

It provides for punishment for advocates for professional and other misconduct

and disciplinary powers of the Bar council of India. In order to attract the

application of section 35 of the advocates act the misconduct need not be

professional misconduct alone. The expression used in the section is

Professional or other misconduct. So even conduct unconnected with the

profession may account to a misconduct as for example, conviction for a crime,

though the crime was not commited in the professional capacity. At the same

time it is to be noted that a mere conviction is not sufficient to find an advocate

guilty of misconduct, the court must look in to the nature of the act on which the

conviction is based to decide whether the advocate is or is not an unfit person to

be removed from or to be allowed to remain in the profession.

Misconduct is of infinite variety, the expression professional or other

misconduct must be understood in their plain and natural meaning and there is

no justification in restricting their natural meaning. The term misconduct

usually implies an act done willfully with a wrong intention and as applied to

professional people it includes unprofessional acts even though such acts are not

inherently wrongful.

law and morality are just two sides of the same coin
namely, that of socialisation. Morality seeks to influence our behaviour by way

of our desires, whereas law is the 'back-up' option, and targets our beliefs.

This is true in the United States as well, and not only in how our legally

mandated school systems and our criminal laws contribute to the shaping,

including the moral training, of citizens. Yet the typical opinions in a

contemporary liberal democracy are likely to be:

(1) that morality cannot be legislated; and 

(2) that even if morality could be legislated, it should not be...that to do so is

somehow improper, even tyrannical, either because there is no morality

objective enough to justify legal enforcement or because one's autonomy and

individuality would be violated by attempts to legislate morality or perhaps

even because one really has no autonomy that can respond to any external

directive.

Such concerns are not evident in the Ethics: law is needed both to help habituate

citizens to virtuous actions and to help maintain the salutary habits they acquire.

These needs can be recognized even by those who are aware that the virtues

generally fostered by law are not the highest. The opinions one may have about

the good, the true, and the beautiful are a secondary concern of most laws. Still,

it is well to keep in mind Aristotle's counsel that one who is "to listen

intelligently to lectures about what is noble and just must have been brought up

in good habits."For proper habituation, laws can be most useful, if not


indispensable.

Although intellectuals of liberal democratic sympathies may not believe that

morality depends on law, it is almost impossible for any regime that takes itself,

and is to be taken, seriously not to shape its citizens with respect to morality. To

deny that legislation of morality can or should take place does not eliminate

such legislation; it merely conceals it, perhaps distorts it, and otherwise

confuses and misleads rulers and ruled alike. (Here, as in physics, much that

Aristotle noticed and relied upon is tacitly relied upon by us as well, but relied

upon haphazardly because it is not properly noticed.) It would be useful,

therefore, to indicate how pervasive Aristotle understands the law to be with

respect to morality in a community. When we see what law can mean, and how

it works, we may better appreciate what the law does in the service of morality,

even in such a liberal democracy as ours.

To speak of the influence of the law is, we shall see, to speak of the many ways

that the community forms the citizen and guides the human being. For us,

however, the term law does tend to be limited to what "government" does, to the

statutes and decrees that governments issue. We have noticed the most

conspicuous way, drawn upon at the end of the Ethics, in which morality is

dependent on law. It should be added here that not only is morality somewhat

dependent on law, but also that the law itself is to a considerable extent
dependent on morality. A properly trained, morally alert citizen-body tends to

be appalled by the lawbreaker. But does not this response (which can help keep

many would-be lawbreakers in line) rest, in turn, upon the presumption that the

law is likely to be, and in fact usually appears to be, itself moral and in the

service of the common good.

There is a critical reciprocity between law and morality. Reciprocity, we recall

from the Ethics, can be vital to justice as a particular virtue. The exercise of

most virtues requires a stable community, one in which one's body and life as

well as property are fairly secure...and, of course, the law is essential here. To

become or to remain a civilized human being usually requires a sound

community...that is, one in which the law plays a considerable part. Is there not

an intimate relation, at home and abroad, between justice and peace To

recognize this is not to deny that friendship also seems to hold communities

together nor that legislators may care more for it than for justice. Even so, is not

proper habituation needed for reliable friendships, as well as for justice. Who

but the legislator, who must always be distinguished from the tyrant, can insure

such habituation.

If law is not based on morality, on what can it be based - Christian morality,

derived from the Ten Commandments, underlies the common law. Criminal law

is based on the Ten Commandments, which also underlie the law of contract
and the law of civil wrongs. The common law inherited by the British Colonies

on the Australian continent and by the Commonwealth established in 1901, was

developed over many centuries by British judges, who reacted to particular

human situations on the basis of Christian values. In an essay entitled "morals

and the Criminal Law,

Lord Devlin wrote:-

"Society means a community of ideas; without shared ideas on politics

morals and ethics, no society can exist. Each one of us has ideas about what

is good and what is evil; they cannot be kept private from the society in which

we live. If men and women try to create a society in which there is no

fundamental agreement about good and evil they will fail; if, having based it

on common agreement, the agreement goes, the society will disintegrate.

"For society is not something that is kept together physically; it is held by the

invisible bonds of common thought. If the bonds were too far relaxed. The

members would drift apart. A common morality is part of the bondage. The

bondage is part of the price of society; and mankind, which needs society,

must pay its price ".


ROLE & RESPONSIBILITY OF A LAWYER :

The Code of Conduct Prescribed For Advocate

Section 49 of the advocates act 1961 empowers the Bar Council of India to

frame rules regulating standards of professional conduct. Accordingly various

duties are prescribed for the advocates some of them are highlighted below.
No advertising or soliciting work, it is against an advocate’s code of ethics to

solicit or advertise work and amounts to a misconduct on the part of the

advocate. Both direct and indirect advertising is prohibited. An advocate may

not advertise his services through circulars, advertisements, touts, personal

communication or interviews not warranted by personal relations. Similarly, the

following forms of indirect advertising are prohibited:

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

profession and address printed on the manifestos, thereby appealing to the

members of the profession practising in the lower courts who are in a position to

recommend clients to counsel practising in the HC.

(ii) canvassing for votes by touring in the province or sending out his clerk or

agents to the various districts, which must necessarily mean directly

approaching advocates practicing in subordinate courts. Further, the signboard

or nameplate displayed by an advocate should be of reasonable size. It should

not refer to details of an affiliated by the advocate i.e. that he is or has been

president or member of a bar council or of any association, or he has been a

Judge or an Advocate-General, or that he specializes in a particular kind of

work, or that he is or was associated with any person or organization or with

any particular cause or matter.


Not to demand fees for training; An advocate is restrained from demanding any

fees for imparting training to enable any person to qualify for enrolment.

Not use name/services for unauthorized practice; An advocate may not allow

his professional services or his name to be associated with, or be used for any

unauthorized practice of law by any lay agency.

Not to enter appearance without consent of the advocate already engaged: an

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

alreadyanother advocate engaged for a party except with the consent of such

advocate. However if such consent is not produced, the advocate must state the

reasons for not producing it, and may appear subsequently, only with the

permission of the court.

Duty to opposite party:- While conducting a case, a lawyer has a duty to be fair

not only to his client but also to the court, and to the opposite party. An

advocate for a party must communicate or negotiate with the other parties

regarding the subject matter of controversy, only through the opposite party’s

advocate. If an advocate has made any legitimate promises to the opposite party,

he should fulfill the same, even if the promise was not reduced to writing or

enforceable under the rules of the court.


Duties of an advocate towards his client: The relationship between a lawyer and

a client is highly fiduciary and it is the duty of an advocate fearlessly to uphold

the interests of the client by fair and honourable means without regard to any

unpleasant consequences to himself or any other person.

The above are only few important code of conduct to be observed by an

advocate practicing in India. According to Justice Abbot Parry, there are seven

important qualities that a lawyer should possess, he call these qualities as seven

lamps of advocacy, they are; Honesty, Courage, Industry, Wit, eloquence,

Judgement, and Fellowship. Apart from that the panchsheel of the bar are

Honesty, Industry, Justice, Service and Philisophy and Panchsheel of the bench

according to Sri ram Kishore Rande are, Impartiality, Independence, Integrity

and Industry, Judicial activism and Prayer. Among the various duties of the

advocates like, duties to client, court, public, colleagues and self, selected points

can be picked up and arranged according to the due and relative importance and

are called as ten commandments of advocates they are;

a) Duties to client

1) Protection of the interest of the client

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

b) Duties to court
3) Honesty and respect

4) Preparation of the case

c) Duties to Public

5) Service

6) Loyalty to law and justice

d) Duties to colleagues

7) Fellowship

8) Fairness

e) Duties to self

9) Systematic study

10) Prudence and deligence

The rules laid down by the Bar Council of India forms the code of conduct for

advocates and in broad sense any violation of such rules or code of conduct can

be termed as professional misconduct. The scope of the term has been still

widened by the Supreme Court in various decisions.

Advocates Act, 1961

The provisions of Section 35 of the Advocates Act deal with professional

misconduct of lawyers and advocates in India, which read as:


A person is found guilty of professional misconduct; it shall refer the case to a

disciplinary committee, shall fix a date of hearing and issue a show cause notice

to the Advocate and the Advocate General of the State. 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.6

Misconduct is of infinite variety; this expression must be understood in a broad

meaning, such that it extends the meaning under natural law, and there is no

justification for restricting their natural meaning. Section 49 of the Advocate

Act empowers the Bar Council of India to frame rules and standards of

professional misconduct. Under the Act, no person has a right to make

advertisement or soliciting; it is against advocate’s code of ethics. He is also not

entitled to any advertisement through circulars, personal communications or

interviews, he is not entitled to demand fees for training and to use name/service

for unauthorized purposes.7

6
Retrieved on: https://indiankanoon.org/doc/1460739/
7
Retrieved on: http://www.legalservicesindia.com/article/article/professional-misconduct-of-lawyers-in-india-
1665-1.html
 

Contempt of Court as professional misconduct

Contempt of court may be defined as an offense of being disobedient or

disrespectful towards the court or its officers in the form of certain behaviour

that defies authority, justice, and dignity of the court.8 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).9The 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.

There are many other landmark judgments regarding the cases involving

professional misconduct of the advocates. In the case of V.C. Rangadurai v.

D.Gopalan10, the court looked into the matter of professional misconduct in

such a way that the decision was made in a humanitarian manner, considering

the future of the accused in this case. The court held that “even so justice has a

correctional edge, a socially useful function, especially if the delinquent is too

old to be pardoned and too young to be disbarred. Therefore, a curative, not

8
Retrieved on: https://en.wikipedia.org/wiki/Contempt_of_court
9
AIR 1995 SC 2348.
10
1979 AIR 281
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 and but did not jeopardize the future of the accused person.

In various other cases like J.S. Jadhav v. Musthafa Haji Muhammed Yusuf11

the court delivered the decision in such a way that it created a notion in the

minds of the wrongdoers that offenders will be punished accordingly.

From the analysis of various cases and certain facts and circumstances, it will be

clear that unlike any other profession, advocacy is regarded as a noble

profession and professional ethics must be maintained. Courts have dealt with

various cases of professional misconduct wherein attempt of murder by the

advocate towards his client have also been reported. Hence, there must be

interference from concerned authorities so that persons with a criminal

background are kept away from this profession. Even though there are

guidelines dealing with the social background of the person enrolling in this

11
1993 AIR 1535
profession, i.e. the person enrolling must be free from any criminal cases, it

does not prove that the person has a criminal nature of his own. So Bar Council

can implement certain rules and regulation so that the conduct of the person

who is showing criminal behaviour can be controlled strict guidelines ensuring

that the person no longer acts unlawfully against his profession. There must be

various career guidance and development programs conducted by the Bar

Council immediately after enrolment so that new legal professionals they will

be aware of the do’s and don’t of this profession and there will be a better group

of advocates in the coming decades.

Instances of Misconduct

Legal Practioners act 1879 has not defined the word Misconduct. The word

Unprofessional conduct is used in the act. Even the Advocates Act 1961 has not

defined the term misconduct because of the wide scope and application of the

term. Hence to understand the instances of misconduct we have to rely on

decided cases. Some of the instances of Professional misconduct are as follows,

1) Dereliction of duty

2) Professional negligence

3) Misappropriation
4) Changing sides

5) Contempt of court and improper behaviour before a magistrate

6) Furnishing false information

7) Giving improper advice

8) Misleading the clients in court

9) Non speaking the truth

10) Disowning allegiance to court

11) Moving application without informing that a similar application has been

rejected by another authority

12) Suggesting to bribe the court officials

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

Contempt of Court As Misconduct

Role of advocates and contempt of court


THE UNSEEMLY controversy about the age of the Chief Justice of India raised
by some members of the Bar at Chennai and the conduct of an advocate
resulting in suo motu contempt proceedings in the Madras High Court, warrants
a study on the role of advocates who take oath to uphold the provisions of the
Constitution while getting enrolled as members of the Bar and also regarding
some of the important provisions of the Contempt of Courts Act in the interest
of the public, for upholding the majesty of law and the dignity of the noble
profession. Any advocate should know that the President of India is the highest
authority to decide on the age of the judges and there cannot be further
arguments over the same.
The Advocates Act 1961 has repealed a host of enactments including Indian Bar
Council Act. When the new Bar Council of India came into existence, it framed
rules called the Bar Council of India rules as empowered by the Advocates Act.
Such rules contain a provision specifically prohibiting an advocate from
adjusting the fees payable to him by a client against his own personal liability to
the client. As a rule, an advocate shall not do anything whereby he abuses or
takes advantage of the confidence reposed in him by his client (vide Rule 24).
Misconduct envisaged in Section 35 of the Advocates Act is not defined. The
section used the expression ``misconduct professional or otherwise''. The word
``misconduct'' is a relative term. It has to be considered with reference to the
subject matter and the context wherein such term occurs. It literally means
wrong conduct or improper conduct (2001(1) L.W. 284). Members of legal
fraternity are guardians of the rights of the individual and society at large
(1997(1) L.W. 297).

The relationship between advocate and client is based only on confidence and
trust. If an advocate is allowed to give advice to one party and appear for the
opposite party in court the confidence reposed in him will be lost and his
conduct will amount to prostitution of the profession. Counsel appearing for one
party is not expected to please both his party and the opposite party and if he
does so, it will amount to professional misconduct and breach of trust.

The Supreme Court in the decision in All India Judges Association vs. Union of
India (AIR 1992 SC 165) has observed that the administration of justice and the
part to be played by the advocates in the system must be looked into from the
point of view of litigant public and the right to life and liberty guaranteed under
Article 21 and right to grant legal aid as contemplated under Article 39A of the
Constitution. The Supreme Court and various landmark decisions upheld the
legal profession as a noble profession.

The law is the embodiment of everything that is excellent and the members of
the Bar who have a vast reservoir of wisdom, strength and courage are its
torchbearers. Krishna Iyer. J., in the Bar Council of India vs. M.V. Dabholkar
(AIR 1976 SC 242) observed that the vital role of the lawyer depends upon his
probity and professional lifestyle. The central function of the legal profession is
to promote the administration of justice. As monopoly to legal profession has
been statutorily granted by the nation, it obligates the lawyer to observe
scrupulously those norms which make him worthy of confidence of the
community in him as a vehicle of social justice. ``Law is not trade, nor briefs
merchandise.'' Law is universally described as an `honourable' profession and is
distinguished by its rules of ethics without which advocacy would degenerate
into a trade or mere sordid pursuit for livelihood and accumulation of wealth.
Flimsy grounds

An unfortunate trend we see nowadays is that advocates indiscriminately


indulging in boycotting courts on various grounds causing disruption in court
work and difficulties to the clients. In most cases the reasons for such boycott
are flimsy like an advocate being beaten by police, want of proper posting of
judges in courts, demand for new courts, etc. There are several other methods to
achieve the purpose instead of boycotting courts. The Supreme Court has come
down heavily on such practice: ``We may further add that the litigant, who
suffers entirely on account of his advocate's non-appearance in court, has also
the remedy to sue the advocate for damages but that remedy would remain
unaffected by the course adopted in this case. Even so, in a situation like this,
when the court mulcts the party with costs for the failure of his advocate to
appear, we make it clear that the same court has power to permit the party to
realise the costs from the advocate concerned. However, such a direction can be
passed only after affording an opportunity to the advocate. If he has any
justifiable cause the court can certainly absolve him from such a liability. But
the advocate cannot get absolved merely on the ground that he did not attend
court as he or his association was on a strike. If any advocate claims that his
right to strike must be without any loss to him but the loss must be only for his
innocent client, such a claim is repugnant to any principle of fair play and canon
of ethics. So when he opts to strike work or boycott the court he must as well be
prepared to bear at least the pecuniary loss suffered by the litigant client who
entrusted his brief to that advocate with all confidence that his cause would be
safe in the hands of that advocate.'' Per R. P. Sethi, J (concurring): With the
strike by the lawyers, the process of court intended to secure justice is
obstructed which is unwarranted under the provision of the Advocates Act
(2001(1)L.W.61).

Just like individuals, corporations and other companies are also liable to action
of contempt. Likewise officers, agents and others who act for a corporation or
company and who knowingly violate or disobey an injunction against the
corporation or companies are punishable for contempt even though the
injunction is only against the corporation or company.

It is a recognised principle that an apology to purge a contempt should be


sincere, penitent and unqualified and acceptable in the circumstances of the
case. If the apology is a mere ruse to escape punishment it cannot be accepted
(1996(1)L.W. 639).

As regards the punishment, that punishment in one matter cannot be the guiding
factor for punishment in another. Punishment has a co-relation with facts and in
each case where punishment is imposed, it must be the resultant effect of the
acts complained of - more serious the violation, more severe is the punishment -
and that has been the accepted norm in matters though however within
the prescribed limits.

The court has a duty to protect the interest of the public in the due
administration of justice. It is hence entrusted with the powers to
punish for contempt of court, not only to protect the rights of the
public, but also to protect the dignity of the court against insult or
injury. The purpose of contempt jurisdiction is to uphold the majesty
and dignity of law courts in the minds of the public. In essence, the
law of contempt is the protector of the seat of justice more than a
person or judge sitting in that seat (2000(3)L.W.448).

Not personal protection

So far as the suo motu proceedings are concerned, the object of such
proceedings is not to afford protection to judges personally from
imputation to which they may be exposed as individuals: it is intended
to be a protection to the public whose interests would be very much
affected if by the act or conduct of any other party, the authority of
the court is lowered and the sense of confidence, which the people
have in the administration of justice, is weakened. It has been held in
Dhananjay Sharma vs. State of Haryana12as follows: ``Any conduct
which has the tendency to interfere with the administration of justice
or the due course of judicial proceedings amounts to the commission
of criminal contempt. The swearing of false affidavits in judicial
proceedings not only has the tendency of causing obstruction in the
due course of judicial proceedings but has also the tendency to
impede, obstruct and interfere with the administration of justice.
Filing of false affidavits or making false statements on oath in courts
aims at striking blow at the rule of law and no court can ignore such
conduct which has the tendency to shake public confidence in the
judicial institution because the very structure of an ordered life is put
at stake.

``The pure fountain of justice shall have to remain unsullied, and that
is the purpose for initiation of contempt proceedings. The object of

12
(AIR 1955 S.C. 1795)
discipline, enforced by courts, in case of contempt, is not to vindicate
the dignity of the court, but to prevent undue interference with the
administration of justice. The High Court, as a court of record,
possessed inherent powers and jurisdiction, which is a special one, not
arising or derived from Contempt of Courts Act.

``Of late, throughout the country certain sad events are taking place,
which tend to affect the administration of justice. Not only
individuals, but self proclaimed groups as well as members of the Bar
and law enforcing agencies, appear to be responsible for putting
spokes in the wheels of administration of justice. Whosoever may be
responsible will have to face the consequences, for always the majesty
of justice will proclaim itself. We have reached a stage when steps
have to be taken to fortify the laws for otherwise force is bound to get
justified. Erosion of well- cherished values cannot be allowed.

``Law is supreme and it is intended for the welfare of the people. The
Bar had its own tradition, in the part, and it was respected not only for
its professional excellence, but also for its participation in all public
activity intended for the welfare of the community. Of late, there have
been numerous instances where members of the Bar have not
followed the code of conduct expected of them, be it inside the court
halls or outside it, either in relation with the client or even with any
member of the public. It will be no answer to state that there has been
deterioration in all professions for the legal profession not only
safeguards the rights of several other professions, but is also called
upon to perform the professional work, after mastering the nuances in
every other profession for those who seek justice from courts belong
to a variety of professions. Needless to add that it must be the reason
why the legal profession stands kept on the pinnacle. It may be the
right of any member of the Bar, in his personal life, to have his own
political affiliation, but when it comes to court proceedings politics
cannot be introduced into it. Similarly the law enforcing agency, the
police force, which is expected to do its duty fearlessly cannot
dubiously fall a prey in the machination from extraneous power
mongering forces in performance of their onerous tasks. It is quite
possible to visualise that quite often spokes are put in the wheels of
investigation, by agencies extraneous, but a policeman should have
the will power to go ahead with his rightful work, ignoring the
possible pinpricks. It was the duty of the lawyers to protect the dignity
and decorum of the judiciary. If lawyers fail in their duty, the faith of
the people in the Judiciary will be undermined to a large extent. it is
said that lawyers are the custodians of civilisation. Lawyers have to
discharge their duty with dignity, decorum and discipline.

``However it would be imperative to remind ourselves that self-


regulation alone would retrieve the profession from lost social respect
and enable the members of the profession to keep the law as a useful
instrument of social order'' (1996 Writ L.R. 57).

In the light of the above observation, I fervently hope that the


members of the Bar will realise their duties and responsibilities and
desist from identifying with their clients.

In the recent case of B. M. Verma v. Uttrakhand13Regulatory Commission

court noted that, it was given the wide powers available with a Court exercising

contempt jurisdiction. In the case of Court of Its Own Motion v. State dealing

with the contempt proceedings involving two senior advocates, observed that

‘given the wide powers available with a Court exercising contempt jurisdiction,

it cannot afford to be hypersensitive and therefore, a trivial misdemeanor would

not warrant contempt action. Circumspection is all the more necessary because

as observed by the SC in SC Bar Association v. Union of India the Court is in

effect the jury, the judge and the hangman; while in M.R. Parashar H. L. Sehgal

it was observed that the Court is also a prosecutor Anil Kumar Sarkar v.

HirakGhosh, reiterates this.


13
 Appeal No. 156 of 2007
In the most controversial and leading case of R.K. Ananad v. Registrar14 of

Delhi High Court, On 30th May, 2007 a TV news channel NDTV carried a

report relating to a sting operation. The report concerned itself with the role of a

defence lawyer and the Special Public Prosecutor in an ongoing Sessions trial in

what is commonly called the BMW case. On 31st May, 2007 a Division Bench

of this Court, on its own motion, registered a writ Petition and issued a direction

to the Registrar General to collect all materials that may be available in respect

of the telecast and also directed NDTV to preserve the original material

including the CD/video pertaining to the sting operation. The question for our

consideration is whether Mr. R.K. Anand and Mr. I.U. Khan, Senior Advocates

and Mr. Sri Bhagwan Sharma, Advocate have committed criminal contempt of

Court or not. It was observed that prima facie their acts and conduct were

intended to subvert the administration of justice in the pending BMW case and

in particular to influence the outcome of the pending judicial proceedings.

Accordingly, in exercise of powers conferred by Article 215 of

the Constitution proceedings for contempt of Court (as defined in Section 2(c)

of the Contempt of Courts Act, 1971) were initiated against Mr. Anand, Mr.

Khan and Mr. Sri Bhagwan Sharma and they were asked to show cause why

they should not be punished accordingly. Court said that Courts of law are

structured in such a design as to evoke respect and reverence for the majesty of

14
2009. 8 SCC 106
law and justice. The machinery for dispensation of justice according to law is

operated by the court. Proceedings inside the courts are always expected to be

held in a dignified and orderly manner. The very sight of an advocate, who was

found guilty of contempt of court on the previous hour, standing in the court

and arguing a case or cross-examining a witness on the same day, unaffected by

the contemptuous behaviour he hurled at the court, would erode the dignity of

the court and even corrode the majesty of it besides impairing the confidence of

the public in the efficacy of the institution of the courts. This necessitates

vesting of power with the HC to formulate rules for regulating the proceedings

inside the court including the conduct of advocates during such proceedings.

That power should not be confused with the right to practise law. Thus court

held that there may be ways in which conduct and actions of an advocate may

pose a real and imminent threat to the purity of court proceedings cardinal to

any court’s functioning, apart from constituting a substantive offence and

contempt of court and professional misconduct. In such a situation the court

does not only have the right but also the obligation to protect itself. Hence, to

that end it can bar the advocate from appearing before the courts for an

appropriate period of time. In the present case since the contents of the sting

recordings were admitted and there was no need for the proof of integrity and

correctness of the electronic materials. Finally the Supreme Court upheld High

Court’s verdict making Anand guilty on the same count. On the other hand, the

Supreme Court let off I U Khan, who was found guilty by the High Court.
Attempt of Murder:

In the case of Hikmat Ali khan v. Ishwar15prasadarya and ors, 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 RadheyShyam in the Court room of Munsif/Magistrate,

Bisauli at Badaun with a knife. A pistol shot is also said to have been fired by

him at the time of incident. After investigation he was prosecuted for offences

under Section 307 of the Indian Penal Code and Section 25 of the Arms Act.

The 1st Temporary Civil and Sessions Judge, by his judgment dated July 3,

1972, convicted him of the said offence and sentenced him to undergo rigorous

imprisonment for three years for the offence under Section 307, I.P.C. and for a

period of nine months for offence under Section 25 of the Arms Act. 

On the basis of the said complaint disciplinary proceedings were initiatedagainst

respondent No. 1 by the Bar Council of U.P. he was found guilty of gross

professional mis-conduct by taking the benefit himself of a forged and

fabricated document which had been prepared at his behest. The Disciplinary

Committee of the Bar Council of U.P. directed that respondent No. 1 be

debarred from practising as an advocate for a period of two years from the date

15
1997 RD-SC 87
of the service of the order. Respondent No. 1 filed an appeal, the said appeal

was allowed by the Disciplinary Committee of the Bar Council of India by

order dated June 8, 1984 and the order of the Disciplinary Committee of the Bar

Council of U.P. dated January 30, 1982 was set aside on the view that there was

no material on the basis of which it could reasonably be held that respondent

No. 1 had prepared the document which was subsequently found forged. Further

the submission of ShriMarkendaya was that having regard to the gravity of the

misconduct of respondent No. 1 in assaulting his opponent in the Court room

with a knife and his having been committed the offence under Section 307,

I.P.C. and his being sentenced to undergo rigorous imprisonment for three years

in connection with the said incident, the punishment of removal of the name of

respondent No. 1 from the roll of advocates should have been imposed on him

and that the Disciplinary Committee of the Bar Council of U. P. was in error in

imposing the light punishment of debarring respondent No. 1 from practising as

an advocate for a period of three years only and that this was a fit case in which

the appeal filed by the appellant should have been allowed by the Disciplinary

Committee of the Bar Council of India. It was held that the acts of mis-conduct

found established are serious in nature. Under Sub-section (3) of Section 35 of

the Act the Disciplinary Committee of the State Bar Council is empowered to

pass an order imposing punishment on an advocate found guilty of professional

or other mis-conduct. Such punishment can be reprimand [Clause (b)],

suspension from practice for a certain period [Clause (c)] and removal of the
name of the advocate from the State roll of advocate [Clause (d)], depending on

the gravity of the mis-conduct found established. The punishment of removal of

the name from the roll of advocates is called for where the misconduct is such

as to show that the advocate is unworthy of remaining in the profession. In this

context, it may be pointed out that under Section 24(A) of the Act a person who

is convicted of an offence involving moral turpitude is disqualified for being

admitted as an advocate on the State roll of advocates. This means that the

conduct involving conviction of an offence involving moral turpitude which

would disqualify a person from being enrolled as an advocate has to be

considered a serious misconduct when found to have been committed by

aperson who is enrolled as an advocate and it would call for the imposition of

the punishment of removal of the name of the advocate from the roll of

advocates. In the instant case respondent No. 1 has been convicted of the

offence of attempting to commit murder punishable under Section 307, IPC. He

had assaulted his opponent in the Court room with a knife. The gravity of the

mis-conduct committed by him is such as to show that he is unworthy of

remaining in the profession. The said mis-conduct, therefore, called for the

imposition of the punishment of removal of the name of respondent No. 1 from

the State roll of advocates and the Disciplinary Committee of the Bar Council of

U. P., in passing the punishment of debarring respondent No. 1 from practising

for a period of three years, has failed to take note of gravity of the misconduct

committed by respondent No. 1. Having regard to the facts of the case the
proper punishment to be imposed on respondent No. 1 under Section 35 of the

Act should have been to direct the removal of his name from the State roll of

advocates. The appeal filed by the appellant, therefore, deserves to be allowed.

Finally court held that the respondents name should be removed from the rolls.

Misbehaviour As Misconduct:

Vinaychandramishra, in re; In this case a senior advocate in on being asked a

question in the court started to shout at the judge and said that no question could

have been put to him. He threatened to get the judge transferred or see that

impeachment motion is brought against him in Parliament. He further said that

he has turned up many Judges and created a good scene in the Court. He asked

the judge to follow the practice of this Court. He wanted to convey that

admission is as a course and no arguments are heard, at this stage. But this act

was not only the question of insulting of a Judge of this institution but it is a

matter of institution as a whole. In case dignity of Judiciary is not being


maintained then where this institution will stand. The concerned judge wrote a

letter informing the incident to the chief justice of India.

Whether the advocate had committed a professional misconduct? Is he guilty of

the offence of the criminal contempt of the Court for having interfered with and

obstructed the course of justice by trying to threaten, overawe and overbear the

Court by using insulting, disrespectful and threatening language, and convict

him of the said offence. Since the contemner is a senior member of the Bar and

also adorns the high offices such as those of the Chairman of the Bar Council of

India, the President of the U.P. HC Bar Association, Allahabad and others, his

conduct is bound to infect the members of the Bar all over the country. We are,

therefore, of the view that an exemplary punishment has to be meted out to him.

Thus the contemnerVinay Chandra Mishra is hereby sentenced to undergo

simple imprisonment for a period of six weeks and he shall stand suspended

from practising as an advocate for a period of three years.

Strike As Misconduct

Ex-capt. Harish uppal V. Union of India,16 Several Petitions raise the question

whether lawyers have a right to strike and/or give a call for boycotts of Court/s.

The petitioners submitted that strike as a mean for collective bargaining is

recognised only in industrial disputes. He submitted that lawyers who are

16
2003(1)ALLMR(SC)1169
officers of the Court cannot use strikes as a means to blackmail the Courts or

the clients. He submitted that the Courts must take action against the Committee

members for giving such calls on the basis that they have committed contempt

of court. He submitted that the law is that a lawyer who has accepted a Vakalat

on behalf of a client must attend Court and if he does not attend Court it would

amount to professional misconduct and also contempt of court. He submitted

that Court should now frame rules whereby the Courts regulate the right

of lawyers to appear before the Court. He submitted that Courts should frame

rules whereby any lawyer who mis-conducts himself and commits contempt of

court by going on strike or boycotting a Court will not be allowed to practice in

that Court. He further submitted that abstention from work for the redressal of a

grievance should never be resorted to where other remedies for seeking

redressal are available. He submitted that all attempts should be made to seek

redressal from the concerned authorities. He submitted that where such

redressal is not available or not forthcoming, the direction of the protest can be

against that authority and should not be misdirected, e.g., in cases of alleged

police brutalities Courts and litigants should not be targeted in respect of actions

for which they are in no way responsible. He agreed that no force or coercion

should be employed against lawyers who are not in agreement with the “strike

call” and want to discharge their professional duties. Respondent submitted

that lawyers had a right to go on strike or give a call for boycott. He further

submitted that there are many occasions when lawyers require to go, on strike or
gave a call for boycott. He submitted that this Court laying down that going on

strike amounts to misconduct is of no consequence as the Bar Councils have

been vested with the power to decide whether or not an Advocate has

committed misconduct. He submitted that this Court cannot penalise

anyAdvocate for misconduct as the power to discipline is now exclusively with

the Bar Councils. He submitted that it is for the Bar Councils to decide whether

strike should be resorted to or not. Petitioner further relied on the case of Lt.

Col. S.J. Chaudhary v. State (Delhi Administration, the HC had directed that a

criminal trial go on from day to day. Before this Court it was urged that the

Advocates were not willing to attend day to day as the trial was likely to be

prolonged. It was held that it is the duty of every advocate who accepts a brief

in a criminal case to attend the trial day to day. It was held that a lawyer would

be committing breach of professional duties if he fails to so attend. In the case

of K. John Koshy and Ors. v. Dr. Tarakeshwar Prasad17 Shaw, one of the

questions was whether the Court should refuse to hear a matter and pass an

Order when counsel for both the sides were absent because of a strike call by

the Bar Association. This Court held that the Court could not refuse to hear the

matter as otherwise it would tantamount to Court becoming a privy to the strike.

Considering the sanctity of the legal profession the court had relied on words

said in case of “In Indian Council of Legal Aid and Advice v. Bar Council of

India, the SC observed thus : “It is generally believed that members of the legal

17
1998 8SCC 624
profession have certain social obligations, e.g., to render “pro bono publico”

service to the poor and the underprivileged. Since the duty of a lawyer is to

assist the court in the administration of justice, the practice of law has a public

utility flavour and, therefor, an advocate must strictly and scrupulously abide by

the Code of Conduct behoving the noble profession and must not indulge in any

activity which may tend to lower the image of the profession in society. That is

why the functions of the Bar Council include the laying down of standards of

professional conduct and etiquette which advocates must follow to maintain the

dignity and purity of the profession.” In Re: SanjeevDatta, the SC has stated

thus: “The legal profession is a solemn and serious occupation. It is a noble

calling and all those who belong to it are its honourable members. Although the

entry to the profession can be had by acquiring merely the qualification of

technical competence, the honour as a professional has to be maintained by its

members by their exemplary conduct both in and outside the Court. The legal

profession is different from other professions in that what the lawyers do,

affects not only an individual but the administration of justice which is the

foundation of the civilised society. Both as a leading member of the

intelligentsia of the society and as a responsible citizen, the lawyer has to

conduct himself as a model for others both in his professional and in his private

and public life. The society has a right to expect of him such ideal behavior. It

must not be forgotten that the legal profession has always been held in high

esteem and its members have played an enviable role in public life. The regard
for the legal and judicial systems in this country is in no small measure due to

the tireless role played by the stalwarts in the profession to strengthen them.

They took their profession seriously and practice it with dignity, deference and

devotion. If the profession is to survive, the judicial system has to be vitalised.

No service will be too small in making the system efficient, effective and

credible.” In the case of SC Bar Association v. Union of India,18 it has been

held that professional misconduct may also amount to Contempt of Court. It has

further been held as follows: “An Advocate who is found guilty of contempt of

court may also, as already noticed, be guilty of professional misconduct in a

given case but it is for the Bar Council of the State or Bar Council of India to

punish that advocate by either debarring him from practice or suspending his

licence, as may be warranted, in the facts and circumstances of each case. The

learned Solicitor General informed us that there have been cases where the Bar

Council of India taking note of the contumacious and objectionable conduct of

an advocate, had initiated disciplinary proceedings against him and even

punished him for “professional misconduct”, on the basis of his having been

found guilty of committing contempt of court.”

Solicitation of Professional Work

Rajendra V. Pai V. Alex Fernandes and Ors.19 Court held that debarring a

person from pursuing his career for his life is an extreme punishment and calls
18
1998. 4 SCC 409
19
 AIR 2002 SC 1808
for caution and circumspection before being passed. No doubt probity and high

standards of ethics and morality in professional career particularly of an

advocate must be maintained and cases of proved professional misconduct

severely dealt with; yet, we strongly feel that the punishment given to the

appellant in the totality of facts and circumstances of the case is so

disproportionate as to prick the conscience of the Court. Undoubtedly, the

appellant should not have indulged into prosecuting or defending a litigation in

which he had a personal interest in view of his family property being involved.

Breach of Trust By Misappropriating The Asset Of Client

Harish Chandra Tiwari v. Baiju;20 Court held on these fact, Appellant

HarishChandra Tiwari was enrolled as an advocate with the Bar Council of the

State of UP in May 1982 and has been practising since then, mainly in the

courts at LakhimpurKheri District in UP. Respondent Baiju engaged the

delinquent advocate in a land acquisition case in which the respondent was a

claimant for compensation. The Disciplinary Committee has described the

respondent as “an old, helpless, poor illiterate person.” Compensation of Rs.

8118/- for the acquisition of the land of the said Baiju was deposited by the

State in the court. Appellant applied for releasing the amount and as per orders

of the court he withdrew the said amount on 2.9.1987. But he did not return it to

the client to whom it was payable nor did he inform the client about the receipt

20
AIR 2002 SC 548
of the amount. Long thereafter, when the client came to know of it and after

failing to get the amount returned by the advocate, compliant was lodged by

him with the Bar Council of the State for initiating suitable disciplinary action

against the appellant. Court held that among the different types of misconduct

envisaged for a legal practitioner misappropriation of the client’s money must

be regarded as one of the gravest. In this professional capacity the legal

practitioner has to collect money from the client towards expenses of the

litigation, or withdraw money from the court payable to the client or take money

of the client to be deposited in court. In all such cases, when the money of the

client reaches his hand it is a trust. If a public servant misappropriates money he

is liable to be punished under the present Prevention of Corruption Act, with

imprisonment which shall not be less than one year. He is certain to be

dismissed from service. But if an advocate misappropriates money of the client

there is no justification in de-escalating the gravity of the misdemeanor. Perhaps

the dimension of the gravity of such breach of trust would be mitigated when

the misappropriation remained only for a temporary period. There may be

justification to award a lesser punishment in a case where the delinquent

advocate returned the money before commencing the disciplinary proceedings.

Informing About Bribe:


 Shambhu Ram Yadav v. Hanuman Das Khatry,21 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 client’s 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.

procedure Followed on the Notice of Professional Misconduct

The following is the procedure followed (1) In exercise of powers under Section

35 contained in Chapter V entitled “conduct of advocates”, on receipt of a

complaint against an advocate (or suomotu) if the State Bar Council has ‘reason

to believe’ that any advocate on its roll has been guilty of “professional or other

misconduct”, disciplinary proceeding may be initiated against him.

(2) Neither Section 35 nor any other provision of the Act defines the expression
21
 2001 6 SCC 1. 165
‘legal misconduct’ or the expression ‘misconduct’.

(3) The Disciplinary Committee of the State Bar Council is authorised to inflict

punishment, including removal of his name from the rolls of the Bar Council

and suspending him from practice for a period deemed fit by it, after giving the

advocate concerned and the ‘Advocate General’ of the State an opportunity of

hearing.

(4) While under Section 42(1) of the Act the Disciplinary Committee has been

conferred powers vested in a civil court in respect of certain matters including

summoning and enforcing attendance of any person and examining him on oath,

the Act which enjoins the Disciplinary Committee to ‘afford an opportunity of

hearing’ (vide Section 35) to the advocate does not prescribe the procedure to

be followed at the hearing.

(5) The procedure to be followed in an enquiry under Section 35 is outlined in

Part VII of the Bar Council of India Rules made under the authority of Section

60 of the Act. Rule 8(1) of the said Rules enjoins the Disciplinary Committee to

hear the concerned parties that is to say the complainant and the concerned

advocate as also the Attorney General or the Solicitor General or the Advocate

General. It also enjoins that if it is considered appropriate to take oral evidence

the procedure of the trial of civil suits shall as far as possible be followed.
Critique

The advocates act 1961 was a long sought after legislation to consolidate the

law relating to the legal practioners, constitution of autonomous Bar Councils,

prescription of uniform qualification for admission and enrolment of persons as

advocates, more importantly it imposes punishment for professional misconduct

by advocates and in that respect it acts as a quasi-judicial body. Only body that

can be approached for professional misconduct of advocate is Bar council

constituted under the Act except for contempt of court which is also a

misconduct. However the following criticisms are levelled against the Act in

terms of its power to punish for professional and other misconduct;

1) No provision of appeal is provided in the act in respective High courts, hence

power of bar Council of the State is equated with that of High court.
2) In ordinary course it is difficult for an advocate to approach the Supreme

Court and get the case admitted from an aggrieved order of the Bar Council of

India.

3) The act has not defined the term misconduct, instead it has included

professional and other misconduct and definition is left to the Bar councils and

Supreme court to decide and to widen the scope.

4) Denial of the principle of natural justice to an ordinary litigant who is

aggrieved with the misconduct of the advocate, as the body of their association

ieBar council is deciding the case in which their own member is the respondent.

This is against the rule that “no man can be a judge in his own case”. The lay

person has to approach appropriate fora constituted under Consumer Protection

act 1986 to get any pecuniary relief due to the loss caused by such misconduct,

if it fits under deficiency of service.

5) At times, based on the circumstances the Act is violative of Article 19 (1) (g),

right to practice trade or profession, and also freedom of speech and expression

enshrined in Article 19(1)(a).
However the intention of the legislature to uphold the dignity of the profession

and to preserve the moral etiquette among legal practioners have been largely

achieved by the Act.

Comparable provisions in other countries :-

England – In England The Legal Profession Act, 1987 is “an Act to regulate

the admission and practice of barristers and solicitors” (as amended in 2007)

and the The Revised Professional Conduct and Practice Rules made by the

Council of the Law Society of New South Wales on 24 August 1995 pursuant to

its power under Section 57B of the Legal Profession Act, 1987 and the

Statement of Ethics proclaimed by the Law Society of New South Wales in

November 1994 governs the conduct in legal profession. From 2010 on wards

legal ombudsman is formed to deal with complaints against all lawyers,

including solicitors, registered in England and Wales. The Legal Ombudsman

replaced the previous complaint handling bodies (for example, the Legal

Complaints Service in the case of complaints against solicitors), and has been

dealing with new complaints since 6 October 2010. Anyone who is dissatisfied

with the standard of service received from their lawyer should complain, in the


first instance, to the lawyer concerned. If the matter cannot be resolved in this

way, then a complaint may be made to the Legal Ombudsman.

USA – in USA each state has a separate set of rules of practices and different

code of conduct for the advocates. For example the newyork state has a separate

rules of Professional Conduct promulgated as Joint Rules of the Appellate

Divisions of the Supreme Court, effective from April 1, 2009. They supersede

the former part 1200 (Disciplinary Rules of the Code of Professional

Responsibility). Indiana state has separate rules for professional conduct, which

elaborates in detail about all aspects of professional conduct and code of ethics

to be followed by an advocate.
Conclusion

The role of the lawyers in the society is of great importance. They being part of

the system of delivering justice holds great reverence and respect in the society.

Each individual has a well defined code of conduct which needs to be followed

by the person living in the society. A lawyer in discharging his professional

assignment has a duty to his client, a duty to his opponent, a duty to the court, a

duty to the society at large and a duty to himself. It needs a high degree of

probity and poise to strike a balance and arrive at the place of righteous stand,

more so, when there are conflicting claims. While discharging duty to the court,

a lawyer should never knowingly be a party to any deception, design or fraud.

While placing the law before the court a lawyer is at liberty to put forth a

proposition and canvass the same to the best of his wits and ability so as to

persuade an exposition which would serve the interest of his client and the

society.
The advocate, as an officer of the Court, also has the responsibility to render

services of sound quality. Lapses in services in the nature of absence when the

matters are called out, the filing of incomplete and inaccurate pleadings – many

times even illegible and without personal check and verification, the non-

payment of court fees and process fees, the failure to remove office objections,

the failure to take steps to serve the parties are not merely professional

omission. They amount to positive dis-service to the litigants and create

embarrassing situation in the court leading to avoidable unpleasantness and

delay in the disposal of matters, and detrimentally affects the entire judicial

system.

Furthermore, as the officers of the court the lawyers are required to uphold the

dignity of the judicial office and maintain a respectful attitude towards the

Court. This is because the Bar and the Bench form a noble and dynamic

partnership geared to the great social goal of administration of justice, and the

mutual respect of the Bar and the Bench is essential for maintaining cordial

relations between the two. It is the duty of an advocate to uphold the dignity and

decorum of the Court and must not do anything to bring the Court itself into

disrepute, and ensure that at no point of time, he oversteps the limits of

propriety.Generally, legal rules are composite and are derived from

heterogeneous source. In India, if we examine all the legal perspective, we shall

find that some of them have come from personal laws and local custom, a good
number of them are based on foreign rules and principles (mainly English),

some are based on the logic or political ideology and so on. Secondly, ‘public

opinion’ which greatly influences law is made up of a number of things –

political ideas, economic theory, ethical philosophy etc. These directly and

indirectly influence law. Therefore, when so many elements work in shaping the

legal precepts, the matter cannot be put in such a simple way as the ‘relation

between law and morals’, because a number of factors join hands in influencing

law, and morals is only one of them. However, some observations can be made

about the relationship between law and morals.

there can never a hard jacket or a universal formula which could determine that

should law be used to enforce morality. It can only be concluded that the level

of enforcement of moral standards depends upon case to case.

In the cases where morality shadows a good and beneficial effect on the society,

there if required, law could be used to enforce that positive morality. For

example, in the case of International Humanitarian Laws, certain moral

standards are also recognized as a part of law or in another illustration that, all

religious and moral norms say not to kill or not to steel, and this moral is

enforced through law.


On the other hand, that morality which produces any harmful effect in any form

in the society, there law should never be used to enforce such morality. For

example, the celebration of Valentine's Day in Indian society is considered as

amoral. But such morals must never get the institutional shape of law.

BIBLIOGRAPHY

Links

http://dspace.cusat.ac.in/jspui/bitstream/123456789/10827/1/Disciplining

%20the%20Lawyers%20_Law%20and%20Professional%20Ethics.PDF

http://www.legalservicesindia.com/article/article/professional-misconduct-of-

lawyers-in-india-1665-1.html

BOOKS
i. Positivism and separation of law and morals (1957-58) 71 Harvard

LawReview at p 601 n 25

ii. The Philosophy of a Law, ed. R.M. Dworkin, Oxford University

Press, London, 1977.

iii. Practice aids-legal ethics and law.

iv. Legal Aid by kauf kittham

Acts :

Advocate’s act 1961.

ARTICLES:

The HINDU –Editorial page

The express newspaper.