Professional misconduct in the legal profession – a critical analysis

Introduction

By all means, the legal profession is intended to be divine or sacred. Every profession has a set of standards for professional conduct that members of that profession must uphold. However, there is also the reality that professional misconduct occurs frequently in both advocacy work and other professions.

In layman’s words, it refers to various actions taken by individuals that appear to be inconsistent with professional ethics and unsuited for the profession. Black’s Dictionary gives a precise definition of the phrase as the violation of some established and unambiguous rule of action, a prohibited act, a failure to perform a duty, unlawful behaviour, and improper or wrong behaviour[1].

The Advocates Act, 1961 as well Indian Bar Council are silent in providing an 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 of the profession come under a clout on account of acts of omission and commission by any member of the profession.[2]

Advocates Act

The provisions of Section 35 of the Advocates Act, which are as follows, address professional misconduct by Indian attorneys and advocates:

If a person is found guilty of professional misconduct, the case will be referred to a disciplinary committee, a hearing date will be set, and the Advocate and the Advocate General of the State will be given a show-cause notice. After hearing from both parties, the State Bar Council’s disciplinary commission 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.[3]

There are multiple kinds of misconduct, thus this expression must be considered broadly to extend the meaning under natural law. It is not justified to limit their natural meaning. The Bar Council of India has the authority to establish guidelines and standards for professional misconduct under Section 49 of the Advocate Act. According to the Act, it is against the advocate’s code of ethics for anybody to make advertisements or solicitations. Additionally, he is not permitted to use the name or service for unlawful purposes, demand payment for training, or place advertisements in publications, personal communications, or interviews.

Misconduct is broad enough to cover both misfeasance and malfeasance, and it applies to professionals. It also covers unprofessional acts, even if they are not always wrong. Any behaviour that has the potential to reflect poorly on the legal profession or damage the positive perception that the public should have of it constitutes professional misconduct.

The Supreme Court ruled in State of Punjab v. Ram Singh that misconduct can include moral turpitude, must be improper or wrong behaviour, unlawful behaviour, wilful behaviour, a forbidden act, a violation of an established and clear rule of action or code of conduct, but not just a mistake of judgement, carelessness, or negligence in the performance of duty.

Contempt of court as professional misconduct

Contempt of court may be defined as an offence of being disobedient or disrespectful towards the court or its officers in the form of certain behaviour that defies the authority, justice, and dignity of the court. 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). The 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.[4]

There have been numerous additional significant rulings concerning instances of professional misconduct by attorneys. The court in V.C. Rangadurai v. D.Gopalan examined the issue of professional misconduct in such a way that the judgement was rendered in a humane manner, taking the accused’s future into consideration. Even yet, the court declared, “justice has a corrective edge, a socially beneficial purpose, especially if the offender is too old to be pardoned and too young to be disbarred. Therefore, given the social environment of the legal profession, a remedial punishment that is not cruel must be administered.

The court then rendered a ruling after carefully considering each and every element of the case as well as the parties involved. It established a deterrence style of justice such that the accused individual receives certain sanctions but also served as a message to others who could be planning similar crimes.

The verdict proved to be a turning point in cases involving professional misconduct since it gave a successful verdict without endangering the accused person’s future. The court delivered the ruling in a number of other cases, such as J.S. Jadhav v. Musthafa Haji Muhammed Yusuf[5] in a manner that gave the wrongdoers the impression that offenders will be punished accordingly.

Case laws

In Sambhu Ram Yadav v. Hanuman Das Khatry, the appellant filed a complaint with the Rajasthan Bar Council against an advocate alleging that while acting as counsel in the case, the advocate wrote a letter alleging that the judge in question accepts bribes and requested Rs. 10,000 to acquire the judge’s favour. The Disciplinary Committee declared the advocate to be completely unsuitable to be a lawyer after finding the advocate guilty of “misconduct” The Rajasthan Bar Council’s conclusion that the legal profession is not a trade or business was upheld by the Supreme Court.

Members of the profession have a special responsibility to uphold the to ensure that justice is carried out legally, it is important to maintain the integrity of the profession and to deter corruption. The advocate’s actions were extremely improper because they not only interfered with the administration of justice but also damaged the profession’s standing in the eyes of the general public.

Bar Council of Maharashtra v. M.V. Dahbolkar[6] 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 behaviour 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 a 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 behaviour.

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-specific, dynamic sense, which captures the role of the advocate in the society at large.

Professional ethics of an advocate

Professional ethics includes a moral code that governs how those working in the legal field and in the practise of law should behave. The court and the administration of justice are the two entities to which every member of the legal profession owes a supreme responsibility. In situations where there may be a conflict of duties, this duty takes precedence over all others.

Legal professionals must conduct themselves honourably, help the court in a responsible manner, and foster public trust in the legal system. They are obligated and expected to conduct themselves with decency and integrity when performing their duty toward other lawyers. In addition to being experts in their fields, attorneys serve as officials of the court and are essential to the administration of justice.

The set of guidelines that govern their professional behaviour consequently result from the obligations they have to the court, their client, their adversaries, and other advocates. Chapter II, Part VI of the Bar Council of India Rules contains regulations on the professional standards that an advocate must uphold. In accordance with section 49(1)(c) of the Advocates Act of 1961, these Rules have been established.

Advocate’s duties towards his client

• Bound to accept briefs.
• Not withdraw from service.
• Not appear in matters in which he is a witness.
• Full and frank disclosure to the client.
• Uphold the interest of the client.
• Not suppress any material of evidence.
• Not disclose any information about his client and himself.
• Not receive any interest in the actionable claims.
• Not charge depending on the success of matters.
• Keep proper accounts etc.

Advocate’s duty towards the court

Act in a respectable way

An advocate must conduct himself with dignity both during the course of his case and when appearing before the court. He ought to act with respect for himself. The advocate has an obligation to report his complaint to the appropriate authorities whenever there is a reason to do so regarding a judicial officer.

Honour the court

The advocate must treat the court with respect. He or she must keep in mind that a free community cannot survive without the dignity and respect shown to judicial officials.

No private communications

The advocate shouldn’t speak privately with the judicial officer about any case that is currently before the court. The advocate shall not use illegal or unethical means, such as threats, bribes, or coercion, to affect a court’s decision in any matter.

Refusal to act in an illegal manner towards the opposition

An advocate shouldn’t behave improperly toward the opposing counsel or party. He must make every attempt to prevent his client from acting improperly, illegally, or unfairly against the court, the opposing counsel, or the other party.

Refusal to represent clients who demand to engage in any unethical behaviour

When a client insists on utilising unethical or improper tactics, the advocate must decline to represent them. He must speak with respect when communicating with others and making arguments in court. During the pleadings, he must refrain from slanderously harming the parties’ reputations.

Appear in the appropriate attire

The advocate must always appear in court while dressed appropriately in accordance with the Bar Council of India Rules, and that attire must be presentable.

Not represent the establishment of which he is a member

An advocate is not allowed to testify in court on behalf of or in opposition to any organisation of which he is a part. But this rule does not apply in the case of appointment as an ‘Amicus Curiae’ or without a fee on behalf of the Bar Council.[7]

Punishment for professional and other misconduct

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 persons who 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 misdemeanor, impropriety, mismanagement, offense, but not negligence or carelessness.

Conduct of advocates

Punishment of advocates for misconduct-

(1) 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 of its disciplinary committee.

(1A) The State Bar Council may, either of its own motion or on the application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.[8]

(2) The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and notice thereof to be given to the advocate concerned and to the Advocate General of the State.

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely-

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 periods as it may deem fit.
4. Remove the name of the advocate from the State roll of advocates

(4) Where an advocate is suspended from practice under clause (c) of sub-section (3) he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India.

(5) Where any notice is issued to the Advocate-General under sub-section (2) the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

Disciplinary committee

who A person or group of individuals who have the authority to consider matters and proceedings involving the professional misbehavior of an advocate upon a complaint, revision, or suo motu is referred to as a discipline committee. The primary purpose of the disciplinary committee is to monitor the observance of professional ethics and standards by the members of the bar council of India or the bar council of any state.

Constitution of the disciplinary committee

The Bar Council shall constitute a disciplinary committee as per Section 9 of the Advocates Act, 1961. This section provides that one or more disciplinary committees are required to be formed and each of these disciplinary committees shall consist of three members.

The election of two from the three members of the disciplinary committee shall be done by the Council from the members of the Bar Council of India itself. The third member shall be co-elected by the Council outside of the members of the Bar Council but shall be an advocate and possess qualifications as prescribed in Section 3(2) of the Advocates Act, 1961.

The section further states that the senior-most advocate shall be the chairman of the committee. The term of members of this committee shall be not more than 3 years.

Powers of the disciplinary committee

Section 42 of the Advocate’s Act, 1961 provides powers of the disciplinary committee. The section states that the disciplinary committee shall have the same powers as vested in a civil court as per the Code of Civil Procedure, 1908 which are as follows:

• Summoning and enforcing the attendance of any person and examining him on oath.
• Requiring discovery and production of any documents.
• Receiving evidence on affidavits.
• Requisitioning any public record or copies thereof from any court or office.
• Issuing commission for the examination of witnesses or documents.[9]
• Any other matter which may be prescribed.

Restricted powers of the disciplinary committee

The disciplinary committee can exercise these powers only with the prior approval of certain authorities. These are as follows:

• Attendance of any presiding officer of a court shall be allowed only with the prior approval of the High Court to which such court is subordinate.
• Attendance of any officer of the revenue court shall be allowed only with prior approval of the State Government.

Miscellaneous powers

• The proceedings before the disciplinary committee shall be deemed to be judicial proceedings.
• The disciplinary committee shall be deemed to be a civil court.
• If a chairman or any member of the disciplinary committee is unavailable on the date fixed for hearing the matter then the disciplinary committee may if it thinks fit proceed with the hearing and pass necessary orders provided that the order passed shall not be the final order. The proceedings and the order passed by such a committee shall not be invalid merely because the chairman or all three members of the disciplinary committee were not present.
• Where the final orders cannot be made because of want of majority among the disciplinary committee or is not in accordance with the opinion of the Chairman or the members of the disciplinary committee then such matter or case shall be placed before the Chairman of the Bar Council. If the Chairman of the Bar Council is acting as the chairman of the disciplinary committee, then the case shall be placed before the Vice Chairman of the Bar Council. After hearing the case, the Vice Chairman shall deliver his opinion and the disciplinary committee shall follow such final order.

Regarding situations involving the professional misconduct of the advocates, there have been various landmark judgments. The court in V.C. Rangadurai v. D.Gopalan examined the issue of professional misconduct in such a way that the judgment was rendered in a humane manner, taking the accused’s future into consideration. Even yet, the court declared, “justice has a corrective edge, a socially beneficial purpose, especially if the offender is too old to be pardoned and too young to be disbarred. Therefore, given the social environment of the legal profession, a remedial punishment that is not cruel must be administered.

The court then rendered a ruling after carefully considering every aspect of the case, including Even yet, the court declared, “justice has a corrective edge, a socially beneficial purpose, especially if the offender is too old to be pardoned and too young to be disbarred. Therefore, given the social environment of the legal profession, a remedial punishment that is not cruel must be administered.

The court then rendered a ruling after carefully considering each and every element of the case as well as the parties involved. It established a deterrence style of justice such that the accused individual receives certain sanctions but also served as a message to others who could be planning similar crimes.

A curative, not 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.

The decision proved to be a turning point for instances involving professional misconduct since it offered a strong ruling without endangering the accused’s future. In numerous other cases, such as J.S. Jadhav v. Musthafa Haji Muhammed Yusuf the court presented the ruling in a way that gave the wrongdoers the impression that they would be punished appropriately.

Prescribed code of conduct for advocates

Misconducts are of limitless varieties. Thus, it is necessary that the expression ‘Misconduct’ must be acknowledged in a broad manner, so much so that the meaning of the term comes under the purview of natural law, leaving no scope of justification for regulating the natural meaning of the expression. The Advocates Act through Section 49, provides the Bar Council of India the power to form and shape standards and rules regarding professional misconduct.[10]

1) According to the Act, no advocate has the right to advertise or solicit his practice as it violates the code of ethics of the Advocates. Both, indirect and direct means of advertising are prohibited. Further, he is not allowed to advertise through personal communications, interviews, or circulars. The following ways of indirect advertisement by the advocate are prohibited:

• The issuing of election manifestos or circulars with the advocates name, address and profession mentioned on such manifestos, which in a way is appealing to the members of the same profession practising in the subordinate courts to endorse clients to the counsel.
• Campaigning for votes through tours within the province.
• Sending out his agents or clerks to various districts within the state to directly approach advocates practicing in the lower courts.
• The nameplate or signboard exhibited by an advocate should not be of an unreasonable size.

Further, it should not mention the details affiliated with the advocate, for example, that he is or was a member or the president of the Bar Council or of any other such An Open Access Journal from or if he ever was an Advocate General or a Judge, or even his own specialisation.

2) He is also not permitted to demand money for training purposes consequently enabling an aspiring lawyer to meet the requirements for enrolment into the State Bar Council.

3) He is not allowed to associate his services or name with any unofficial practices or purposes related to law or any agency of law.

4) He is forbidden from entering an appearance in any case wherein an advocate has already been engaged by a party. He can do so after seeking the consent of the advocate engaged. However, if the consent of the advocate is not produced in court, the advocate has to state an appropriate reason for not being able to produce the same. He may appear afterwards, only with the consent of the court.

Conclusion

The legal profession is seen as a noble profession by society. Professional ethics are crucial in the legal profession, just like in any other career. There are some professional rules that one must adhere to in order to preserve the dignity of this profession. Misconduct results when someone violates these standards.

A lawyer’s chances of losing a case or clashing with his client are reasonable. However, neither a loss nor a dispute with a client by themselves is sufficient cause to file a complaint against a lawyer. A lawyer who engages in misconduct or malpractice, however, may be held liable. It is a serious matter to file a complaint against a lawyer.

However, a lawyer who is guilty of misconduct or malpractice can be sued. Filing a complaint against a lawyer is a serious matter and one must be very sure that their concern with a lawyer involves professional misconduct.

Bibliography:

• http://www.barcouncilofindia.org/about/professional-standards/procedure-for-complaints-against-advocates/
• https://support.avvo.com/hc/en-us/articles/115000326423-How-to-file-a-complaint-against-an-attorney
• https://blog.ipleaders.in/fir-different-complaint/
• https://lawgic.info/how-to-sue-an-unprofessional-or-unethical-lawyer-in-india/
• http://www.legalservicesindia.com/article/article/professional-misconduct-by-lawyers-in-india-1621-1.html
• http://www.legalservicesindia.com/article/print.php?art_id=1665
• https://indiankanoon.org/doc/1460739/
• Vinay Chandra Mishra AIR 1995 SC 2348.
• C. Rangadurai v. D. Gopalan and ors 1979 AIR 281
• S Jadhav v. Musthafa Haji Muhammed Yusuf and ors 1993 AIR 1535

References:

[1] Retrieved on: http://www.legalservicesindia.com/article/article/professional-misconduct-by-lawyers-in-india-1621-1.html

[2] Retrieved on: http://www.legalservicesindia.com/article/print.php?art_id=1665

[3] Retrieved on: https://indiankanoon.org/doc/1460739/

[4] Retrieved on: https://en.wikipedia.org/wiki/Contempt_of_court

[5] J.S Jadhav v. Musthafa Haji Muhammed Yusuf and ors 1993 AIR 1535

[6] Bar Council Of Maharashtra vs M. V. Dabholkar, available at https://indiankanoon.org/doc/276363/

[7] Misconduct under the Advocates Act, available at https://blog.ipleaders.in/professional-misconductadvocates-act-1961/amp/

[8] Misconduct of Lawyers in India, available at http://www.legalservicesindia.com/article/1665/Professionalmisconduct-of-lawyers-in-india.html

[9] http://www.barcouncilofindia.org/about/professional-standards/procedure-for-complaints-against-advocates/

[10] Professional Misconduct, available at https://easyadvocacy.com/EADigest/Professional-Misconduct-and-ItsImplications-Under-Advocates-Act-1961

This article has been submitted by Nisha Yadav and Anukta Barman.