This article is written by Prabha Dabral from IMS Unison University, Dehradun. This is an informative article which deals with the step-by-step detailed procedure for filing a complaint against a lawyer.
Table of Contents
Introduction
Whenever a person commits an offence, they become eligible to face the legal consequences for it. A Complaint is the first formal action taken against such a person. In other words, a complaint is an allegation made to a magistrate so that a lawsuit can be initiated. It is defined under Section 2(d) of the Criminal Procedure Code (Cr. P. C.), 1973. A complaint can be filed with a Metropolitan Magistrate or equivalent court with an intention to request action on it.
Though the First Information Report (FIR) serves a similar purpose under Section 154 of the CrPC, the only difference is that the FIR is filed for a cognizable offence (serious offences) which sets criminal law into motion whereas a complaint can be filed for both cognizable and non-cognizable offences. The non-cognizable offences are the offences that are less serious and require the police to issue a warrant for doing an investigation on the matter.
There can be many reasons to file a complaint against a lawyer. He is a person who represents their client in a lawsuit but just like any other human being, he can violate the law too. In such a case, a lawsuit can be initiated against them. One of the common offences that they commit is professional misconduct. It refers to the improper or unacceptable behaviour of a professional person or failure to meet the mentioned professional obligations. A lawyer after accepting fees for a case and not appearing on the trial or day-to-day proceedings may harm the case. This is an example of professional misconduct. Some other examples of misconduct include neglect or negligence, fee disputes and misappropriation of money, etc. A client can sue their lawyer on this basis.
Submitting the complaint
Indian lawyers are governed by The Advocates Act, 1961. Under Section 4 of this Act, a statutory body called the Bar Council of India (BCI) was established. It is an apex governing body that regulates the legal practice and legal education of all the lawyers of India. It also governs all the other State Bar Councils and prescribes standards of professional conduct.
The BCI has many committees to accomplish its functions, the Disciplinary Committee is one of them. If a client is aggrieved by the misconduct of their lawyer, then he can take remedy by filing a complaint before the State Bar council. He is not seeking a remedy for himself but is pointing out the misconduct and asking the professional body to protect the standards of the profession. When the matter goes to the State Bar Council, its disciplinary committee steps up to handle the matter. In case, the lawyer is not enrolled with any State Bar, the aggrieved can complain directly to the BCI. To know if a lawyer is enrolled with any State Bar Council, one can file an application under the Right To Information (RTI) Act, 2005.
Procedure for filing complaints against a lawyer
As per Section 35 of The Advocates Act 1961, in case an advocate commits a professional misconduct then he is liable for punishment. One can file a complaint in the Bar Council of the particular state and if the disciplinary committee of the council finds the complaint to be genuine then proceedings are initiated against that advocate. So, for initiating the proceedings, a complaint is the first step taken as per the procedure mentioned below-
Language of complaint
The complaint against a lawyer must be in the form of a petition. It can be in English, Hindi or in any regional language that is declared to be a state language. In case, the complaint is filed in Hindi or any other regional language, it shall be submitted with a copy of its translation into English.
Verification of complaint
The complaint must contain the details of the lawyer against whom the complaint is made as well as the personal details of the petitioner. The details regarding the name, address, phone number, enrollment number of the lawyer must be there. The complaint has to be duly signed and verified as required under the Civil Procedure Code (CPC), 1908.
Fees and removal of defects in a complaint
Every complaint is to be accompanied by the fees which are prescribed in the Bar Council of India Rules (i.e. 500 rupees or more, depending upon the state where the case is filed). These rules have been placed under Section 49 of the Advocates Act, 1961. The secretary of the Bar Council may require the complainant to pay the fees if the prescribed fees have not been paid. The secretary can also ask the complainant to remove the defects as he may find necessary.
Moreover, to support the complaint the petitioner is required to contain an affidavit on a non-judicial stamp paper of Rs 10/- and attest it by the Oath Commissioner or the Notary. If the complaint is in order, it shall be registered and shall be placed before the Bar Council for an order to be passed.
Notice to the lawyer
Once the above proceedings are completed, the complaint is referred to one of the disciplinary committees of the State Bar Association. Then the registrar shall efficiently send a notice to the concerned lawyer.
The notice asks the lawyer to showcase within a specified time period. Moreover, it asks the lawyer to submit the statement of defence, documents and affidavits in support of their defence. In case, the advocate or his representative do not appear in the court after receiving the showcase notice, then the matter shall be heard and determined in his absence.
Date of enquiry
After the notice is sent, the committee discusses whether the complaint is genuine and there is a requirement for the matter to be investigated. In case, the committee thinks that the concerned lawyer is liable, then the disciplinary committee of the State Bar Council chooses a date to hear the matter.
The date, hour and place of the enquiry are fixed by the chairman of the disciplinary committee. The date of enquiry must not be later than 30 days from the receipt of the reference. The registrar gives the notice regarding the date and time of enquiry to the complainant, the concerned advocate and the Attorney General or the Additional Solicitor General of India in whose presence the case is to be decided.
The notice may be sent through messenger or by registered post. The complainant is supposed to pay the cost of the notices unless the disciplinary committee directs otherwise.
Appearance
Parties can appear in person or through an advocate who should file a vakalatnama and give the name of the Bar Council in which he is enrolled, his telephone number and his residential address.
In case either the complainant or the respondent do not appear in an inquiry before the Committee, then the Committee may proceed with an ex-parte decree. This decree is passed when either of the parties is absent on the hearing date. It gives power to the judge to pass an order in favour of the party that is present there. If both the parties are absent then the complaint is rejected and the petitioner has to file a fresh complaint.
Record of evidence and proceedings
Every document that is recorded by the Committee as evidence shall be signed by the Chairman or by any member of the Committee in absence of the Chairman.
Every disciplinary committee has to make a record of its day-to-day proceedings. A case diary is to be maintained by the registrar in which all the relevant information is to be recorded. For example, the date of filing, the date for the hearing, details of service of the notices, statements or petitions filed and other proceedings in matters before the committee.
All the above proceedings are considered to be judicial proceedings. Hence, these are governed under Section 193 and Section 228 of the Indian Penal Code (IPC), 1860.
Judgement
The disciplinary committee shall hear and determine the matter. The findings of the committee along with a reason to support that finding may be given in the form of a judgement. The registrar shall send a certified copy of the final order to each of the parties in the proceedings free of charge. The order is to be signed by all the members of the committee and then sent to the office of the Bar Council. In case the committee believes that the matter should be cross-examined and must be in the interest of justice, the procedure for the trial of civil suits shall be followed.
Grounds on which enquiries are dropped
The enquiries before the disciplinary committee shall never be dropped solely because it has been withdrawn, settled or otherwise compromised or the complainant does not wish to proceed with the enquiry. There are certain grounds for the dropping of enquiries as mentioned below-
- When the complainant dies during the proceedings of the enquiry and no representative is there to conduct the case. If this happens then the disciplinary committee, based on the allegations made and the evidence available, shall make a suitable order either to proceed with the enquiry or to drop it.
- When the enquiry is against only one advocate and he dies, the committee shall drop the proceedings.
- When the enquiry is against more than one advocate and one of them dies, then the committee may continue the enquiry against the others unless it decides otherwise.
Consequences of filing a complaint
After filing a complaint under Section 35 of the Act, the advocate concerned is given equal opportunity of being heard. After the advocate is heard, the disciplinary committee of a State Bar Council under Section 35(3) of the same Act may make any of the following orders-
- Dismiss the complaint if it does not seems to be a genuine one
- Initiate the proceedings
- Reprimand the advocate
- Suspend the advocate from practice for a particular period
- Remove the name of the advocate from the State roll of advocates in severe cases
In a case, New India Assurance Co. Ltd. v. A.K. Saxena AIR [2004], the respondent was an advocate. A dispute escalated between the client and the advocate because of which the advocate was asked to return the files to his client. He was ready to return the files on the condition of getting his fees paid. The client filed a complaint claiming the return of his files. The court held that it is open for the advocate to file a recovery suit against his client for the fees to be paid but retaining the files of the client comes under the breach of professional duty.
In another case, the State of Punjab and ors v. Ram Singh ex. Constable [1992], the gunman of the Deputy Commissioner of Police (the respondent) was found heavily drunk while roaming around the bus stand wearing a service revolver. He was dismissed from the service due to such an act. He filed a suit claiming that such dismissal is illegal, ultra vires and opposed to the principle of natural justice as dismissal can only be done for the gravest act of misconduct. The court restored the order of dismissal and held that the word ‘misconduct’ does not have a precise definition but it can be connoted from the context, delinquency in the performance and its effect on the discipline. The court also has given a list of acts that are considered professional misconduct. They are-
– Moral turpitude;
– Improper or wrongful behaviour;
– A forbidden act;
– Carelessness or negligence in the performance of duty; and
– Disobedience of established set of rules or code of conduct.
Appeal to the Bar Council of India
If a lawyer’s conduct is unprofessional owing to which the State Bar Council withdraws the license of that concerned lawyer or awards some other punishment, he still has a chance to take the matter to the Bar Council of India if he thinks injustice is done to him.
After an order is passed against an advocate, the Advocate-General of the State may prefer an appeal to the Bar Council of India within 60 days from the date of the communication of the order. The appeal to the Council shall be made in the form of a memorandum in writing. Later, the Registrar of the Bar Council of India shall issue a notice to the State Bar Council for the complete records to be sent to the Council.
The disciplinary committee of the Bar Council of India then shall hear such appeal and may pass an order as it deems fit. It has the power to even vary the punishment that was awarded by the disciplinary committee of the State Bar Council. The committee of the Bar Council of India shall exercise all the powers that are exercised by the Civil Court or Court of Appeal under C.P.C. The order that is passed is then communicated to the parties and the Secretary of the State Bar Council Concerned.
Related case laws
In a case, Suo Motto Enquiry vs Nand Lal Balwani [BCI Tr. Case No. 68/1999], the respondent (an advocate) hurled the shoes and shouted some slogans in the Supreme Court of India. Proceedings for both contempt of court and professional misconduct were initiated against him. The Supreme Court found him guilty and awarded him imprisonment for 4 months along with some fine. He was also found guilty of professional misconduct as per the disciplinary committee of the Bar Council of India. As a punishment, his name was removed from the Bar Council of Maharashtra and Goa.
In another case, V.C. Rangadurai v. D. Gopalan and Others [AIR 1979 SC 281], the court observed that law is a noble profession and is viewed as a profession for the people. The nobility of this profession lasts as long as the members maintain their commitment to integrity and service to the community. Hence, the legal profession is viewed as a responsibility towards the people. This is why every delinquent who deceives his client deserves to be frowned upon.
Conclusion
Society considers the legal profession as a noble profession. Just like any other profession, professional ethics is very important in law. To maintain the nobility of this profession, there are certain professional norms that a person has to observe. When a person does not comply with these norms, it leads to misconduct.
There is a fair chance of a lawyer losing a case or having a disagreement with his client. But neither the loss nor disagreement with a client alone is sufficient grounds for filing 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.
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