In this blog post, Mr.Sreeraj.K.V, a student of Government Law College, Ernakulam, Kerala writes about Professional misconduct under Advocates Act, 1961.The post covers areas like the definition of the term misconduct, provisions under the Advocates Act as well as various important cases dealing with the matter.
Introduction
A lawyer’s profession is meant to be a divine or a sacred profession by all means. In every profession, there are certain professional ethics to be followed by every person who is into such a profession. But there is a fact that professional misconduct is a common aspect not only in other professions but also in advocacy. In simple terms, it means certain acts done by the persons which 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.[1]
From the definition, it is now clear that the act of professional misconduct is done purely with an intention of getting unlawful gains. The Advocates Act, 1961 and the Indian Bar Council plays a vital role in providing rules and guidelines regarding the working, code of conduct and such other matters concerning lawyers and advocates in India.
The attributes of a profession are:
- Existence of a body of specialized knowledge or techniques
- Formalized method of acquiring training and experience
- The establishment of a representative organization with professionalism as its goal
- Formation of ethical codes for the guidance of conduct
- Charging of fees based on services but with due regards to the priority of service over the desire of monetary rewards
Misconduct leads to acts which are unlawful in nature even though they are not inherently wrongful. Before the Advocates Act, 1961, we had the Legal Practitioners Act, 1879. There is no definition given for the term ‘misconduct’ in the Act, but the term ‘unprofessional conduct’ is being used in the Act. Some of the instances of professional misconduct are as follows:
- Dereliction of duty
- Professional negligence
- Misappropriation
- Changing sides
- Contempt of court and improper behavior before a Magistrate
- Furnishing false information
- Giving improper advice
- Misleading the clients in court
- Notspeaking the truth
- Disowning allegiance to the court
- Moving application without informing that a similar application has been rejected by another authority
- Suggesting to bribe the court officials
- Forcing the prosecution witness not to say the truth.[2]
Advocates Act, 1961
The provisions of Section 35 of the Advocates Act deals with professional misconduct of lawyers and advocates in India which read as:
If a person is found guilty of professional misconduct; he shall refer the case to a disciplinary committee, shall fix a date of hearing and issue a show cause notice to the Advocate and the Advocate General of the State. The disciplinary committee of the State Bar Council, after hearing both parties, may:
- Dismiss the complaint, or where the proceedings were initiated at the instance of the State Bar Council, directs that proceedings be filed;
- Reprimand the advocate
- Suspend the advocate from practice for such a period as it deems fit;
- Remove the name of an advocate from the state roll of advocates.[3]
Misconduct is of infinite variety; this expression must be understood in a broad meaning such that it extends the meaning under natural law, and there is no justification for restricting their natural meaning. Section 49 of the Advocates Act empowers the Bar Council of India to frame rules and standards of professional misconduct. Under the Act, no person has a right to make advertisements or solicit; it is against an advocate’s code of ethics. He is also not entitled to any advertisement through circulars, personal communications or interviews, not demand fees for training and not to use name/service for unauthorized purposes.[4]
Contempt of Court as Professional Misconduct
Contempt of court may be defined as an offense of being disobedient or disrespectful towards the court or its officers in the form of certain behaviors that defies authority, justice, and dignity of the court.[5] 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).[6]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.
There are many other landmark judgments regarding the cases involving professional misconduct of the advocates. In the case of V.C.Rangadurai v. D.Gopalan[7], the Court looked into the matter of professional misconduct in such a way that decision was made in a much humanitarian manner by considering the future of the accused in this case. Court held that “even so justice has a correctional edge, a socially useful function, especially the delinquent is too old to be pardoned and too young to be disbarred. Therefore, a curative, not cruel punishment has to be delivered in the social setting of the legal profession”. The court then held 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 as well as this leads to a warning towards such other people who intend to commit the acts of the same nature. The judgment turned out to be a landmark in the cases concerning professional misconduct as it delivered an effective judgment by not curtailing the future of the accused person. In various other cases like J.S.Jadhav v. Musthafa Haji Muhammed Yusuf[8], the Court delivered the decision in such a way that it created a notion in the minds of the wrongdoers that offenders will be punished accordingly.
Conclusion
From the analysis of various cases and certain facts and circumstances, it will be clear that unlike any other profession, advocacy is regarded as a noble profession and professional ethics must be maintained before any other ways of the code of conduct and professional behavior. Courts have dealt with various cases of professional misconduct wherein attempt of murder by the advocate towards his client were also reported. Hence, there must be a rapid interference from concerned authorities so that a person with a criminal background will be kept away from this profession. Even though there are guidelines dealing with the social background of the person enrolling in this profession, i.e., the person enrolling must be free from any criminal cases, it does not prove that the person has a criminal nature of his own. So the Bar Council can implement certain rules and regulation such that the person who is showing criminal behavior must be awarded strict guidelines so that the person will no longer act unlawfully against his profession. There must be various career guidance and development programs conducted by the Bar Council immediately after the enrolment of advocates so that they will be aware of the do’s and don’t of this profession and there will be a better group of advocates in the coming decades.
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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: http://www.legalservicesindia.com/article/article/professional-misconduct-of-lawyers-in-india-1665-1.html
[5] Retrieved on: https://en.wikipedia.org/wiki/Contempt_of_court
[6] In Re: Vinay Chandra Mishra AIR 1995 SC 2348.
Retrieved on: http://www.legalserviceindia.com/articles/sc_t.htm
[7] V.C. Rangadurai v. D. Gopalan and ors 1979 AIR 281
[8] J.S Jadhav v. Musthafa Haji Muhammed Yusuf and ors 1993 AIR 1535
