Aashima Kakkar
The legal profession is regarded as a noble profession by society, and good ethics is a basic requirement of any profession. To preserve the nobility of the legal profession, those who practise it must adhere to and follow a set of ethical standards. Professional ethics refers to the commitment to and observance of a set of professional standards.
These ethics are rules that govern a person’s or a group’s behaviour in a professional setting. It establishes guidelines for how an individual should interact with other people and institutions in a given setting.
The Advocates Act of 1961 governs the practise of law in India. In addition, Sections 3 and 4 of the Advocates Act, 1961, respectively, provide for the establishment of State Bar Councils and the Bar Council of India.
Misconduct occurs when a person fails to follow professional norms or ethics. The Advocates Act of 1961 makes no mention of professional misconduct. Even the Bar Council is deafeningly silent about professional misconduct. Professional misconduct is defined as unacceptable or improper behaviour, especially when perpetrated by a professional.
In the legal sense, it refers to an act committed with the wrong intent by members of the legal profession, such as betraying a client’s trust or attempting to commit fraud or deceive the court, the adverse party, or his counsel.
In other words, professional misconduct is defined as any act that disqualifies an Advocate from continuing in the legal profession.
What is professional misconduct?
The Supreme Court stated in the case of State of Punjab v. Ram Singh Ex. Constable[1] that “misconduct in office” is defined as “unlawful behaviour or neglect by a public officer that affects a party’s rights.” In addition, the court noted that professional misconduct could include:
- Moral Turpitude.
- Wrongful or improper behaviour
- Wilful and unlawful behaviour is a prohibited act
- encroachment
- The act complained of bears a forbidden quality or character due to carelessness or negligence in the performance of duty.
The term “Professional Misconduct” is not defined anywhere in the Advocates Act, and a standard definition is impossible to come up with. As a result, precedents in this area are the only reliable source of information about what constitutes professional misconduct.
Moral turpitude is an act or behaviour that offends the community’s sentiments or accepted standards. No person shall be admitted as an advocate on a State roll if he has been convicted of a crime involving moral turpitude, according to Section 24A of the Advocates Act, 1961.
Furthermore, if a person who is already enrolled as an advocate commits such moral turpitude, the Bar Council and its disciplinary committee can investigate the matter and impose appropriate sanctions.
In the above-mentioned case, Justice K. Ramaswamy stated that any improper or wrongful behaviour that is unlawful in nature and is done intentionally by a professional person can be considered professional misconduct. Furthermore, professional misconduct may result from the commission of any prohibited act or the violation of a clearly defined rule of action or code of conduct.
Section 35
By prescribing standards of professional conduct and etiquette and exercising disciplinary jurisdiction over the bar, the Bar Council serves as a regulatory body. The Council also establishes standards for legal education and recognises universities whose law degrees can be used to qualify for a position as an advocate.
The Bar Council of India and each State Bar Council have disciplinary committees to exercise disciplinary jurisdiction. Every Bar Council must have a Disciplinary Committee, according to Section 9 of the Advocates Act, 1961.
Every disciplinary committee must have three members, two of whom must be elected by the Council from among its members and the third must be co-opted by the Council from among the advocates who possess the qualifications specified in the proviso to sub-section (1). The committee’s Chairman will be chosen from among the three senior members.
Section 35 of the Advocates Act of 1961 deals with the disciplinary powers of the State Bar Councils and the punishment of advocates for misconduct.
Section 35[2] states that –
“Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee”.
Furthermore, the disciplinary committee of a State Bar Council shall set a date for the case to be heard and shall give notice to the advocate involved as well as the State’s Advocate-General. After giving the advocate in question and the Advocate-General an opportunity to be heard, the disciplinary committee of a State Bar Council may decide on the matter.
The Disciplinary Committee can issue the following orders: dismiss the complaint or direct that the proceedings be filed if the complaint was filed at the request of the State Bar Council.
- Reprimand the lawyer.
- Suspend the lawyer from practising for as long as it sees fit
- Remove the advocate’s name from the State’s list of advocates.
When dealing with any case brought under this section, the Bar Council of India’s disciplinary committee must follow the same procedure as set out in section 35. When it comes to the Bar Council of India, notice must be given to both the concerned advocate and the Attorney-General of India, which in the case of the State Bar Council is the State Advocate-General.
Any person who is aggrieved by an order of the disciplinary committee of a State Bar Council made under section 35 or by the Advocate-General of the State may appeal to the Bar Council of India under section 37 within sixty days of the date of communication of the order to him.
The Bar Council of India’s disciplinary committee will hear such an appeal. Furthermore, any person who is still aggrieved by an order made by the Bar Council of India’s disciplinary committee under section 36 or section 37, or the Attorney-General of India, as the case may be, may file an appeal with the Supreme Court within sixty days of the date on which the order is communicated to him, and the Supreme Court may pass such order (including an order varying the punishments awarded by the disciplinary committee of the Bar Council of India) thereon as it deems fit.
Case laws
In the case of State v. Lalit Mohan Nanda[2], an Advocate’s duty is to uphold his client’s interests by all fair and honourable means, but the opposite happened. In this case, the question was whether Mr. Nanda was guilty of professional misconduct for violating the rules governing the professional conduct of lawyers established under Section 15(a) of the Indian Bar Councils Act, 1926.
Advocate Lalit Mohan Nanda was found guilty of professional misconduct by the Honourable Orissa High Court, as he was found guilty of changing sides, which means he appeared for the opposing party in the same case after appearing for the first party. The responsibility of upholding the interests of the client.
The respondent in Shambhu Ram Yadav v. Hanum Das Khatry[3] wrote a letter to his client asking him to bribe the judge so that the client could win the case. The respondent was found guilty of bribing a judge under Section 35 of the Advocates Act, and the State Bar Council barred him from practising law for two years.
The respondent challenged the aforementioned order before the Disciplinary Committee of the Bar Council of India. By order dated July 31, 1999, the Disciplinary Committee of the Bar Council of India, which consisted of three members, increased the punishment and directed that the respondent be prosecuted.
That the respondent’s name be struck from the roll of advocates, permanently barring him from practising law. The respondent then took his case to the Supreme Court of India. The Honourable Supreme Court upheld the decision of the Bar Council of India’s Disciplinary Committee, stating that “the legal profession is not a trade or business” it is a noble calling.
In the case of Emperor v. K.C.B[4], Bazrang Lal Marwari was in charge of certain tins of ghee that had been seized by the Katwa Municipal authorities for being adulterated.
The lawyer lied to Bazrang Lal Marwari, claiming that the Sub-Divisional Officer, Katwa, had ordered the tins to be returned to the owner. The Honourable Calcutta High Court found the advocate guilty of misconduct for providing false information in this case.
Misappropriation occurs when an advocate collects money from his clients for court purposes and then uses it for personal gain. This is considered professional misconduct. One such case of misappropriation is L.C Goyal v. Suresh Joshi[5].
In this case, the money received as court-fee was misappropriated by an advocate (appellant in this case). The appellant misappropriated Rs. 25,491/- and was found guilty of professional misconduct by the Honourable Supreme Court.
Conclusion
Many cases of professional misconduct have been seen in the recent scenario, where online hearings are taking place due to the Covid-19 virus. Advocates are not adhering to the dress code and appear before the Honourable Court in an unprofessional manner, which is contrary to their duty to the court.
During a live virtual hearing before the Rajasthan High Court, a Senior Advocate was seen smoking hookah. These are the kinds of things that one would not expect from someone who works in a noble profession.
Advocates have the dual responsibility of zealously protecting their clients’ interests while also acting as officers of the court. As a result, they are expected to uphold the highest levels of integrity and honour. The conduct of an advocate should reflect their privileged position in society, which stems from the profession’s nobility.
- State of Punjab v. Ram Singh Ex. Constable 1992 AIR 2188 ↑
- State v. Lalit Mohan Nanda AIR 1961 Ori 1 ↑
- Shambhu Ram Yadav v. Hanum Das Khatry AIR 2001 SC 2509 ↑
- Emperor v. K.C.B AIR 1935 Cal 547 ↑
- L.C Goyal v. Suresh Joshi AIR 1999 SC 2222 ↑