Professional Misconduct: Meaning, Ambit and Punishment

A PROJECT OF PROFESSIONAL ETHICS ON Professional Misconduct: Meaning, Ambit and Punishment Submitted to: Mr. Ankit Awasthi

Date of submission: 04/04/2016

RAIPUR, CHATTISGARH

Submitted by: Gurpreet Kaur Chawla Semester X Roll no. : 47 Section: C

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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

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ACKNOWLEDGEMENTS

I, Gurpreet Kaur Chawla, 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, Mr. Ankit Awasthi, 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.

Gurpreet Kaur Chawla Semester X

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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 Verma BCI Tr. Case No. 49/1993 Prof. Krishanraj Goswami v. Vishwanath D. Mukashikar D.C. Appeal No. 40/1995 Munish Chandra Goel v. Smt. Sudesh Rani JT 2002 (1) SC 427 Surendra Nath Mittal v. Daya Nand Swaroop BCI Tr. Case No. 63/1987 Pratap Narain v. Y.P. Raheja BCI Tr. Case No. 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

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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.

INTRODUCTION

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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 1 and thereafter to the Supreme Court against the order of the Bar Council of India2 Generally legal profession is not a trade or business, 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 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_LE GAL_PROFESSION_1st_Author_s_name_Naiana_Jain 5

2001 6 SCC 1 7

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 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 Singh7, the Supreme Court has explained the term “misconduct” in connection with the misconduct of the personnel in the Police Department but may be applied in determining whether or not conduct implies to misconduct. The Supreme Court

has observed that the term ‘misconduct’ may involve moral turpitude,

it must be improper or wrong behaviour, 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 6

Supra at 4

7

AIR 1992 SC 2188

8

2004 AIR SCW 2894

9

AIR 1963 SC 1313 8

such, may nevertheless be of such dishonourable or infamous character as to invite the punishment due to professional misconduct.

THE BODY OR AUTHORITY EMPOWERED TO PUNISH FOR PROFESSIONAL OR OTHER MISCONDUCT 1. STATE BAR COUNCIL AND ITS DISCIPLINARY COMMITTEE

Organization- Section 35 of the 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; 10

§ 35 of Advocates Act, 1961

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§ 6(c) of Advocates Act, 1961

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§ 9(1) of Advocates Act, 1961

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GUPTA S.P., PROFESSIONAL ETHICS, ACCOUNTABILITY FOR LAWYER AND BENCH BAR RELATIONS (4 ed., 2010) Central Law Agency. th

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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 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 14

§ 35(3) of Advocates Act, 1961

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§ 35(4) of Advocates Act, 1961 10

(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. (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 may make such order as to the costs of any proceedings before it as it may drew fit and any such order shall be executable as if it were an order of the Supreme Court. Remedy against the order of punishment by the Bar Council of India Section 48-AA: Review

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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 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, Radhey Shyam 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

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AIR 1997 SC 864 12

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

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 Srikishan Dass 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.

17

Elbepeter, Professional misconduct of lawyers in India, available online at http://www.legalservicesindia.com/article/article/professional-misconduct-of-lawyers-in-india-16651.html 18

AIR 2001 SC 2509

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AIR 1998 SC 283 13

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: 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. Krishanraj Goswami 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

20

BCI Tr. Case No. 49/1993

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D.C. Appeal No. 40/1995 14

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. 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: Surendra Nath Mittal v. Daya Nand Swaroop23 Facts: In this case the respondent advocate made manipulation in the operative part of the judgement and decree by adding the words “mai sood” i.e including interest. The respondent advocate however denied the allegation and contended that he had not committed any offence. Held: The disciplinary committee found the advocate guilty and held that it was the respondent advocate who had added the words subsequently and that the same amounts to professional misconduct The committee ordered for his suspension for one year. 8. Handing over of forged documents to the opposite party: Pratap Narain v. Y.P. Raheja24

22

JT 2002 (1) SC 427

23

BCI Tr. Case No. 63/1987

24

BCI Tr. Case No. 40/1993 15

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 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 25

B.C.I. Tr. Case No. 86/1992

26

BCI Tr. Case No.115/1996

27

AIR 1994 SC 975 16

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: "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 28

(1995) 2 SCC 534

29

(1998) 4 SCC 409 17

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.

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. 30

B.C.I. Tr. Case No. 68/1999

31

1999 (1) SCR 937 18

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 ie Bar 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. AIYER P.RAMANATHA AND AIYER N.S RANGNATH, LEGAL & PROFESSIONAL ETHICS Vol 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. RAI KAILASH, LEGAL EHICS ACCOUNATABILITY

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_MORA LITY_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-lawyersin-india-1665-1.html

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