A PROJECT OF PROFESSIONAL ETHICS

ON
Professional Misconduct: Meaning, Ambit and Punishment
Submitted to:

DR. DIPAK DAS

(Faculty, Professional Ethics )

Date of submission:
04/04/2016

ATAL NAGAR , CHATTISGARH

Submitted by:
SAKSHI DHRUW
Semester X
Roll no. : 47
Section: A

1
 TABLE OF CONTENTS

ACKNOWLEDGEMENTS...................................................................................................................3
LIST OF CASES...................................................................................................................................4
OBJECTIVES.......................................................................................................................................5
RESEARCH METHEDOLOGY...........................................................................................................5
INTRODUCTION.................................................................................................................................6
PROFESSIONAL ETHICS – MEANING AND AMBIT.....................................................................7
THE BODY OR AUTHORITY EMPOWERED TO PUNISH FOR PROFESSIONAL OR OTHER
MISCONDUCT.....................................................................................................................................9
1. STATE BAR COUNCIL AND ITS DISCIPLINARY COMMITTEE...............................................9
2. BAR COUNCIL OF INDIA AND ITS DISCIPLINARY COMMITTEE.......................................11
INSTANCES OF PROFESSIONAL MISCONDUCT BY LAWYERS..............................................12
CRITIQUE..........................................................................................................................................18
CONCLUSION...................................................................................................................................19
REFRENCES......................................................................................................................................20
Books:..........................................................................................................................................20

2
 ACKNOWLEDGEMENTS

I, Sakshi Dhruw , consider it my most humble privilege to have been able to work on the demanding
yet most interesting and enthralling of all issues, Professional Misconduct: Meaning, Ambit
and Punishment. Working on this paper has been one of the most enriching experiences of my life
and has not only amassed bulk of highly relevant and extremely functional information, but has also
endowed me with an empirical, at the same time empathetic perspective towards the subject. In this
context, I’d like to extend heartfelt thanks to the people who have rendered this project as a reality. I
would take this privilege to thank my Faculty,Dr. Dipak Das, for his unwavering and unconditional
support, incomparable and illuminating knowledge and guidance, without which this project would
not have been feasible. I would also like to express my earnest gratitude to the HNLU library staff, I.T
department, ever-so-helpful seniors and my friends and colleagues and each and every person without
whose help, support and guidance, and in fact mere presence, this project would never have
transformed from strands and traces of mere thought into tangible black and white reality.

Sakshi Dhruw

Roll no 136

Semester X

3
 LIST OF CASES

Sambhu Ram Yadav v. Hanuman Das Khatry, 2001 6 SCC 1

State of Punjab v. Ram Singh, AIR 1992 SC 2188

Nortanmal Chauaisia v. M.R. Murli, 2004 AIR SCW 2894

P an Advocate, AIR 1963 SC 1313

Hikmat Ali Khan v. Ishwar Prasad Arya and Others, AIR 1997 SC 864

Shambhu Ram Yadav v. Hanuman Das Khatry, AIR 2001 SC 2509

P.D. Gupta v. Ram Murti and Anr.,AIR 1998 SC 283

Allahabad Bank v. Girish Prasad VermaBCI Tr. Case No. 49/1993

Prof. KrishanrajGoswami v. Vishwanath D. MukashikarD.C. Appeal No. 40/1995

Munish Chandra Goel  v. Smt. Sudesh Rani JT 2002 (1) SC 427

SurendraNath Mittal v. DayaNandSwaroopBCI Tr. Case No. 63/1987

PratapNarain v. Y.P. RahejaBCI Tr. Case No. 40/1993

Smt. P. Pankajam v. B.H. Chandrashekhar, B.C.I. Tr. Case No. 86/1992

Babu Lal Jain v. Subhash Jain, BCI Tr. Case No.115/1996

John D’souza v. Edward Ani, AIR 1994 SC 975

In re: Vinay Chandra Mishra (the alleged contemner), (1995) 2 SCC 534

Supreme Court Bar Association vs. Union of India & Anr.,(1998) 4 SCC 409

Case: Suo Motto Enquiry v. Nand Lal Balwani, B.C.I. Tr. Case No. 68/1999

4
 OBJECTIVES

 To understand the meaning and ambit of Professional Misconduct by lawyers under

Advocates Act, 1961.
 To analyse the various instances of Professional Misconduct and other misconducts
with reference to case laws.
 To identify the body or authority empowered to punish for Professional Misconduct.
 To undergo a critical analysis of the provisions of misconduct under Advocates Act,
1961.

RESEARCH METHEDOLOGY

 The nature of the project is purely doctrinal/non-empirical. It is purely based on data

collected from books, acts, journals and web sources.
 The methodology also includes data collected both from the primary & secondary
sources, but mainly from secondary sources.

5
 INTRODUCTION

Advocacy is a noble profession and an advocate is the most accountable, privileged and
erudite person of the society and his act are role model for the society, which are necessary to
be regulated. Professional misconduct is the 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 advocate. Chapter V of the Advocate Act, 1961, deals with the conduct of
Advocates. It describes provisions relating to punishment for professional and other
misconducts. Section 35(1) of the Advocate Act, 1961, says, where on receipt of a complaint
or otherwise a State Bar Council has reason to believe that any advocate on its roll has been
guilty of professional or other misconduct, it shall refer the case for disposal to it disciplinary
committee. Section 35 empowers the disciplinary committee to reprimand the advocate
and suspend the advocate from practice for such period as it may deem fit or remove
the name of the advocate from the State roll of advocates. However, an appeal against
the order of the disciplinary committee may be preferred, to the Bar council of India 1and
thereafter to the Supreme Court against the order of the Bar Council of India2

Generally legal profession is not a trade or business, it’s a gracious, noble, and
decontaminated profession of the society. Members belonging to this profession should not
encourage deceitfulness and corruption, but they have to strive to secure justice to their
clients. The credibility and reputation of the profession depends upon the manner in which
the members of the profession conduct themselves. It’s a symbol of healthy relationship
between Bar and Bench.

The Advocates Act, 1961 as well Indian Bar Council are silent in providing exact definition
for professional misconduct because of its wide scope, though under Advocates Act, 1961 to
take disciplinary action punishments are prescribed when the credibility and reputation on the
profession comes under a clout on account of acts of omission and commission by any
member of the profession.3

1
§ 37 of Advocates Act, 1961
2
§ 38 of Advocates Act, 1961
3
SANJIVA ROW, THE ADVOCATES ACT 1961 (6th ed., 1997), Allahabad: The Law Book Company (P.) Ltd

6
 PROFESSIONAL ETHICS – MEANING AND AMBIT

A person who carries/undertakes the profession is called a professional. Depending on the

profession a person undertakes, he/she is identified with a special name relevant to the
profession.
Misconduct, according to Oxford dictionary means a wrongful, improper, or unlawful
conduct motivated by premeditated act. It is a 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 an act which disqualifies an advocate to
continue in legal profession.4

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 the context of misconduct of an advocate, any conduct
that in any way renders an advocate unfit for the exercise of his profession, or is likely to
hamper or embarrass the administration of justice may be considered to amount to
misconduct, for which disciplinary action may be initiated.

The Supreme Court has, in some of its decisions, elucidated on the concept of ‘misconduct’,
and its application. In Sambhu Ram Yadav v. Hanuman Das Khatry5, a complaint was filed
by the appellant against an advocate to the Bar Council of Rajasthan, that while appearing in
a suit as a counsel, he wrote a letter stating that the concerned judge, before whom the suit is
pending accepts bribes, and asked for Rs. 10,000 to bribe and influence the judge to obtain a
favourable order. The Disciplinary Committee, holding that the advocate was guilty if
4
Naiana Jain; The Ethics And Morality Of Legal Profession, available online at
http://www.academia.edu/8416972/Title_of_the_Paper_THE_ETHICS_AND_MORALITY_OF_LEGAL_PRO
FESSION_1st_Author_s_name_Naiana_Jain
5
 2001 6 SCC 1

7
“misconduct”, stated that such an act made the advocate “totally unfit to be a lawyer.” The
Supreme Court, upholding the finding of the Rajasthan Bar Council held that the legal
profession is not a trade or business. Members belonging to the profession have a particular
duty to uphold the integrity of the profession and to discourage corruption in order to ensure
that justice is secured in a legal manner. The act of the advocate was misconduct of the
highest degree as it not only obstructed the administration of justice, but eroded the
reputation of the profession in the opinion of the public.6

In case of State of Punjab v. Ram Singh 7, the Supreme Court has explained the term
“misconduct” in connection with the misconduct of the personnel in the Police Department
but may be applied in determining whether or not conduct implies to misconduct. The
Supreme Court has observed that the term ‘misconduct’ may involve moral turpitude,
it must be improper or wrong behaviour, willful in character forbidden act, a
transgression of established or definite rule of action or code of conduct, but not mere
error of judgment, carelessness or negligence in performance of duty.

In Nortanmal Chauaisia v. M.R. Murli8, the Supreme Court has held that misconduct has not
been defined in the Advocates Act, 1961. Misconduct, inter alia, envisages breach of
discipline, although it would not be possible to lay down exhaustively as to what
would constitute misconduct and indiscipline, which, however is wide enough to
include wrongful omission or commission, whether done or omitted to be done
intentionally or unintentionally. It means improper behaviour, intentional wrong doing or
deliberate violation of a rule of standard of behaviour’.

In the matter of P an Advocate9, the Court has held that an advocate may be punished
not only when he is guilty of professional misconduct but also if he is guilty of other
misconduct which may not be directly concerned with the professional activity as
such, may nevertheless be of such dishonourable or infamous character as to invite the
punishment due to professional misconduct.

6
Supra at 4
7
AIR 1992 SC 2188
8
2004 AIR SCW 2894
9
AIR 1963 SC 1313

8
 THE BODY OR AUTHORITY EMPOWERED TO PUNISH FOR PROFESSIONAL
OR OTHER MISCONDUCT

1. STATE BAR COUNCIL AND ITS DISCIPLINARY COMMITTEE

Organization- Section 35 of the Advocates Act makes it clear that on receipt of a

complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll
has been guilty of professional or other misconduct, it shall refer the case for its
disposal to disciplinary committee 10. It is one of the functions of the State Bar Council to
entertain and determine the cases of misconduct against the advocate on its roll 11. Section 9
of the Act requires the Bar Council to constitute one or more disciplinary
committees12. Each of such committee is required to consist of three persons of whom two
shall be persons elected by the council from amongst its members and other shall be
a person co-opted by the council from amongst its member advocates who possess the
qualifications specified in the provisions to subsection (2) of section 3 and who are
not members of council and the senior most advocate amongst the members of the
disciplinary committee shall be the chairman thereof.13

Procedure- Section 35 provides that after giving the advocate concerned and the
Advocate- General an opportunity of being heard, the disciplinary committee of a State
Bar Council may make any of the following orders-:

1. Dismiss the complaint or where the proceedings were initiated at the instance of
the State Bar Council, direct that the proceedings be filed;

2. Reprimand the advocate;

3. Suspend the advocate from practice for such period as it may deem fit;

4. Remove the name of the advocate from the State roll of advocates.14

10
§ 35 of Advocates Act, 1961
11
§ 6(c) of Advocates Act, 1961
12
§ 9(1) of Advocates Act, 1961
13
GUPTA S.P., PROFESSIONAL ETHICS, ACCOUNTABILITY FOR LAWYER AND BENCH BAR RELATIONS (4th ed.,
2010) Central Law Agency.
14
§ 35(3) of Advocates Act, 1961

9
It is that when the advocate is suspended from the practice under the aforesaid clause (3), he
shall, during the period of suspension, be debarred from practicing in any Court or
before any authority or person in India.15

Section 41: Alteration in the roll of advocates

Where an order is made reprimanding or suspending an advocate, a record of the punishment
shall be entered against his name in the state roll and where an order is made removing an
advocate from practice , his name shall be struck off the state roll.

Section 36-B: Disposal of disciplinary proceedings

This section provides that the disciplinary committee of the State Bar Council shall dispose of
the complaint received by it under section 35 expeditiously and in each case the proceedings
shall be concluded within a period of one year from the date of the receipt of the complaint or
the date of the initiation of the proceedings at the instance of the State Bar Council, as the
case may be, failing which such proceedings shall stand to the BCI which may dispose of the
same as if it were proceedings withdrawn for inquiry under section 36(2). 

Remedy against the order of punishment by the State Bar Council

Section 44: Review of order by disciplinary committee

The disciplinary committee of Bar Council may of its own motion or otherwise review any
order, within 60 days of the date of the order passed by it.However no such order of the
review of the disciplinary committee of a State Bar Council shall have effect, unless it has
been approved by the Bar Council of India.

Section 37: Appeal to the Bar Council of India

(1) Any person aggrieved by an order of the disciplinary committee of the State Bar Council
made Under Section 35 or the Advocate General of the State may within 60 days of the date
of the communication of the order to him , prefer an appeal to the Bar Council of India.
(2) Every such appeal shall be heard by the disciplinary committee of the BCI which may
pass such order including order varying the punishment awarded by the disciplinary
committee of the State Bar Council as it deems fit.

15
§ 35(4) of Advocates Act, 1961

10
(3) No order of the disciplinary committee of the State Bar Council shall be varied by the
disciplinary committee of the BCI so as to prejudicially affect the person aggrieved without
giving him reasonable opportunity of being heard.

2. BAR COUNCIL OF INDIA AND ITS DISCIPLINARY COMMITTEE

Organization- Section 36 of the Advocates Act empowers the Bar Council of India to
refer, in certain circumstances, the case for disposal to its disciplinary committee. Section 9
provides that the a Bar Council shall constitute one or more disciplinary committees,
each of which shall consist of three persons of whom two shall be persons elected by
the Council from amongst its members and the other shall be a person elected by the
council amongst advocates who possess the qualifications specified in the provision to
sub-section (2) of Section 3 and who are not members of the council and the senior most
advocate amongst the members of disciplinary committee shall be the chairman thereof.

Powers-: Section 42 deals with the powers of the disciplinary committee of a Bar
Council. The provisions of Section 42 have already been stated in context of powers
of the disciplinary committee of the State Bar Council. Section 42-A makes it clear
that the provisions of Section 42 shall, so far as may be, apply in relation to the
disciplinary committee of the Bar Council of India.

Section 43 makes it clear that the disciplinary committee of the Bar Council of India
maymake such order as to the costs of any proceedings before it as it may drew fit
and any such order shall be executable as if it were an order of the Supreme Court.

Remedy against the order of punishment by the Bar Council of India

Section 48-AA: Review

The bar council of India or any of its committee , other than its disciplinary committee , may
on its own motion or otherwise, review any order, within 60 days of the date of that order,
passed by it under the Advocates Act.

Section 38: Appeal to the Supreme Court 

Any person aggrieved by an order made by the disciplinary committee of the Bar Council of
India under Section 36 or Section 37 or the Attorney General of India or the Advocate

11
General of the state concerned, as the case may be , may within 60 days of the date on which
the order is communicated to him, prefer an appeal to the supreme court and the supreme
court may pass such order including an order varying the punishment awarded by the
disciplinary committee of the Bar council of India thereon as it deems fit.
However no order of the disciplinary committee of the Bar council of India shall be varied by
the Supreme Court so as to prejudicially affect the person aggrieved without giving him a
reasonable opportunity of being heard.

INSTANCES OF PROFESSIONAL MISCONDUCT BY LAWYERS

1. Attempt of Murder:
Hikmat Ali Khan v. Ishwar Prasad Arya and Others16

Ishwar Prasad Arya was an advocate practicing at Badaun in U.P. he assaulted his
opponent, RadheyShyam in the court-room of Munsif as Badaun with a knife. After
investigation he was prosecuted for offences under section 307 IPC and section 25 of
the Arms Act and he was sentenced for three years imprisonment.

The appellant Hikmat Ali Khan complained against the advocate and prayed for fresh
inquiry. In the said proceedings, the advocate appeared and filed his return statement
but thereafter he did not appear. Hence, the Bar Council of U.P proceeded ex-parte
against him and the disciplinary committee of the state Bar Council of U.P debarred
for a period of three years. The advocate again appealed to the Bar Council of India
and it had set aside the punishment. Then Himat Ali filed appeal to the Supreme Court.
The Supreme Court held that his conduct was such that his name should be removed from the
state rule of advocates as he was found guilty of an offence attempting to commit
murder and convicted for it and as he was unworthy of remaining in the profession.17

16
AIR 1997 SC 864
Elbepeter, Professional misconduct of lawyers in India, available online at
17

http://www.legalservicesindia.com/article/article/professional-misconduct-of-lawyers-in-india-1665-1.html

12
 2. Informing About Bribe:
 Shambhu Ram Yadav v. Hanuman Das Khatry18,

The Court upheld the order of bar council of India dated 31st July 1999, which held that the
appellant has served as advocated for 50 years and it was not expected of him to indulge in
such a practice of corrupting the judiciary or offering bribe to the judge and he admittedly
demanded Rs.10,000/- from his client and he orally stated that subsequently order was passed
in his 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.

3. Purchase of the property in dispute of the client:

P.D. Gupta v. Ram Murti and Anr.19 

Facts: One SrikishanDass died leaving behind extensive immovable properties. Claims to the
said properties were made by one Vidyawati claiming to be the sister of the deceased, one
Ram Murti and two others who claimed themselves to be the heir of the deceased.Later the
said properties were purchased by the advocate of Vidyawati knowing them to be disputed.
The advocate thereafter sold the property to a third party and made profit. A complaint was
made against the advocate to the Bar Council of Delhi.

Held: Since the disciplinary committee of the Bar Council of Delhi could not dispose of the
complaint within a period of one year and therefore the proceedings had been transferred to
the Bar Council of India under Section 36-B of the Advocates Act. The disciplinary
committee of the Bar Council of India found him guilty of professional misconduct and
suspended him from practice for period of one year.

4. Non filing of the case or filing of the case with nominal court fees:
18
AIR 2001 SC 2509
19
AIR 1998 SC 283

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 Allahabad Bank v. Girish Prasad Verma20 

Facts: In this case complainant Allahabad Bank filed complaint against the advocate Girish
Chandra Verma alleging that out of the 52 suits which were given to the advocate for filing in
the court 50 suits were filed with nominal court fees and 2 suits were not filed at all and the
advocate misappropriated the sum the sum paid to him by the complainant for the purpose of
court fees.

Held : U.P Bar Council disciplinary committee held that the advocate has misappropriated
the amount of the court fees and further ordered for the striking of the name of the advocate
from the roll of the U.P Bar Council. The committee made it clear that legal profession is a
noble profession and its members must set an example of conduct worthy of emulation.

5. Deliberate delay in filing of the suit:

Prof. KrishanrajGoswami v. Vishwanath D. Mukashikar21

Facts: In this case the appellant advocate made a delay in filing in filing the suit and also
made a delay in moving the interim application due to which the complainant suffered huge
losses. The complainant gave two written notices to the to the appellant advocate for the
return of the papers so that he could engage separate lawyers but the appellant advocate did
not respond. It was also alleged by the complainant that the advocate did this deliberately in
connivance with the other side

Held: The Disciplinary Committee of the Bar Council of Maharashtra and Goa found him
guilty of professional misconduct and imposed punishment of suspension of licence for three
years.

6. Suppression of material facts with intention to harass poor persons:

Munish Chandra Goel v.Smt. Sudesh Rani22

Facts: In this case the respondent advocate filed suits for the eviction of the tenants by
suppressing the fact of an earlier compromise decree by which the tenants were declared as
owners.The respondent advocate should have disclosed the material facts since his wife and
he himself were involved in the compromise of the suits.

20
BCI Tr. Case No. 49/1993
21
D.C. Appeal No. 40/1995
22
JT 2002 (1) SC 427

14
Held: The respondent advocate was held guilty of having committed professional as well as
other misconduct. The committee ordered that his licence to practice would be suspended for
a period of two years.

7. Manipulation of the judgement and the decree:

SurendraNath Mittal v. DayaNandSwaroop23 

Facts: In this case the respondent advocate made manipulation in the operative part of the
judgement and decree by adding the words “maisood” i.e including interest. The respondent
advocate however denied the allegation and contended that he had not committed any
offence.
Held: The disciplinary committee found the advocate guilty and held that it was the
respondent advocate who had added the words subsequently and that the same amounts to
professional misconduct The committee ordered for his suspension for one year.

8. Handing over of forged documents to the opposite party:

PratapNarain v. Y.P. Raheja24

Facts: In this case the complainant alleged that the respondent handed over him a forged stay
order while no stay order was passed by the court in the case. The respondent however
pleaded that the forged stay order was handed over to the complainant by his clerk.
Held: The committee after examining the facts, evidence etc., held that the respondent was
guilty of professional misconduct of serious nature as he had forged the order of the court.
Consequently, the Disciplinary committee ordered removal of his name from the roll
maintained by the Bar Council of Delhi.

9. Not appearing before the court deliberately and intentionally:

Smt. P. Pankajam v. B.H. Chandrashekhar25

Facts: In this case the complainant Smt. Pankajam filed a case against against her advocate
alleging misconduct on his part as after accepting the brief and having received the payment
he did not attend the proceedings and she lost the case.

Held: The Disciplinary Committee of Bar Council of India held that the advocates conduct in
not appearing before the court was an intentional and deliberate act. The committee held the

23
BCI Tr. Case No. 63/1987
24
BCI Tr. Case No. 40/1993
25
B.C.I. Tr. Case No. 86/1992

15
respondent advocate guilty of profession misconduct and ordered that he be suspended from
practice for a period of two years.

10. Advocate actively engaged in carrying other business:

Babu Lal Jain v. Subhash Jain26

Facts: The complainant was an advocate. He alleged that the respondent advocate was a
practising lawyer as well as was working as an editor, printer, and publisher of a weekly
called “Aaj Ki Janata”.

Held: Rule 47 of BCI rules prohibits an advocate to be engaged personally in any business.

The respondent advocate was found to have been actively engaged in carrying on the
business and his conduct was take by the disciplinary committee as profession misconduct.

11. Refusal to return the will:

John D’souza v. Edward Ani27

Facts: In this case the respondent Edward Ani lodged the complaint with the Karnataka Sate
Bar Council alleging that the appellant with whom the will executed by his mother in law
Mrs. Mary Raymond was entrusted with safe custody refuse to return that will in spite of two
letters demanding to hand over the will. 

Held: The Supreme Court held that the advocate has committed breach of his professional
duty and found him guilty of profession misconduct. 

Contempt Of Court Vs. Professional Misconduct

In the matter of In re: Vinay Chandra Mishra (the alleged contemner)28, the contemner who
was a senior advocate, President of the Bar and Chairman of the Bar Council of India, on
being questioned by the Judge started to shout and said that no question could have been put
to him and that he will get the High Court Judge transferred or see that impeachment motion
is brought against him in Parliament. This Court while sentencing him to simple
imprisonment for six weeks suspended him from practising as an advocate for a period of
three years and laid down as follows:

26
BCI Tr. Case No.115/1996
27
AIR 1994 SC 975
28
(1995) 2 SCC 534

16
 "The contemner has obviously misunderstood his function both as a lawyer
representing the interests of his client and as an officer of the court. Indeed, he has
not tried to defend the said acts in either of his capacities. On the other hand, he has
tried to deny them. Hence, much need not be said on this subject to remind him of his
duties in both the capacities. It is, however, necessary to observe that by indulging in
the said acts, he has positively abused his position both as a lawyer and as an officer
of the Court, and has done distinct disservice to the litigants in general and to the
profession of law and the administration of justice in particular."

In the case of Supreme Court Bar Association vs. Union of India & Anr.29, a Constitution
Bench of this Court overruled In re: Vinay Chandra Mishra (the alleged contemner) and held
as under:

"The power of the Supreme Court to punish for contempt of court, though quite wide,
is yet limited and cannot be expanded to include the power to determine whether an
advocate is also guilty of "Professional misconduct" in a summary manner which can
only be done under the procedure prescribed in the Advocates Act. The power to do
complete justice under Article 142 is in a way, corrective power, which gives
preference to equity over law but it cannot be used to deprive a professional lawyer
of the due process contained in the Advocates Act 1961 by suspending his licence to
practice in a summary manner, while dealing with a case of contempt of court."

It is to be noted that proceedings for contempt and professional misconduct can be carried out
simultaneously.
Case: Suo Motto Enquiry v. Nand Lal Balwani30

Facts: The respondent advocate hurled the shoes and shouted slogans in the Supreme Court of
India.Both contempt and proceedings for professional misconduct were initiated against him.
Held: The Supreme Court found him guilty for contempt of court and awarded him a simple
imprisonment for four months and fine of 2000 Rupees.31

Further the DC of BCI also found him guilty of professional misconduct and ordered his
name to be removed from the roll of Bar Council of Maharashtra and Goa.

29
(1998) 4 SCC 409
30
B.C.I. Tr. Case No. 68/1999
31
1999 (1) SCR 937

17
 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
misconduct. However the following criticisms are leveled 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 has been largely achieved by the Act.

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 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.

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 REFRENCES

Books:

1. AIYERP.RAMANATHA AND AIYER N.S RANGNATH, LEGAL & PROFESSIONAL

ETHICSVol III (3rd ed., 2003)Wadhawa Nagpur.
2. GUPTA S.P., PROFESSIONAL ETHICS, ACCOUNTABILITY FOR LAWYER AND BENCH
BAR RELATIONS (4th ed., 2010) Central Law Agency.
3. K. GURURAJ CHARI, ADVOCACY AND PROFESSIONAL ETHICS (2000)Wadhwa& Co.
4. RAIKAILASH, LEGAL EHICSACCOUNATABILITY FOR LAWYERS AND BENCH BAR
RELATIONS (11th ed., 2013) Central Law Publication.
5. SANJIVA ROW, THE ADVOCATES ACT 1961 (6th ed., 1997), Allahabad: The Law
Book Company (P.) Ltd.

Articles

1. Naiana Jain; The Ethics And Morality Of Legal Profession, available online at
http://www.academia.edu/8416972/Title_of_the_Paper_THE_ETHICS_AND_MOR
ALITY_OF_LEGAL_PROFESSION_1st_Author_s_name_Naiana_Jain

2. Elbepeter, Professional misconduct of lawyers in India, available online at

http://www.legalservicesindia.com/article/article/professional-misconduct-of-lawyers-
in-india-1665-1.html

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