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PROFESSIONAL MISCONDUCT
QUESTION BANK
1. Explain the term âProfessional Ethicsâ and âProfessional Misconductâ with the help of instances.
2. Discuss the procedure to be followed by State Bar Council in dealing with a complaint against an advocate.
3. What is professional misconduct? Explain the procedure to be followed in disciplinary committee of State Bar Council and Bar Council of India in solving complaint for professional misconduct.
4. What is professional misconduct and other misconduct? Explain the powers of disciplinary committee of State Bar Council and Bar Council of India.
5. Explain the term âProfessional and other misconductâ. Who is the authority to punish for it? Explain its powers and procedure?
6. Define âProfessional Misconductâ. Explain he constitution, powers and procedure followed by the Disciplinary Committees.
Short Notes
1. Punishment for professional misconduct.
SYNOPSIS
I. "Professional or Other Misconduct" Meaning
1. Statutory Context Under the Advocates Act, 1961
2. Judicial Interpretation of "Misconduct"
3. Scope of "Other Misconduct"
II. Role of the State Bar Council in Punishing Guilty Advocates
1. Power of the State Bar Council to Punish
2. Composition of the Disciplinary Committee
3. Power to Withdraw and Transfer Proceedings
4. Procedure to be Followed by the Committee
5. Nature of Final Orders and Penalties
a. Dismiss the Complaint:
b. Reprimand the Advocate:
c. Suspension from Practice
d. Removal from the State Roll:
6. Procedural Powers of the Committee
7. Fiduciary and Judicial Status of Proceedings
8. Technical Functioning and Majority Opinions
9. Costs and Continuity of Proceedings
10. Statutory Time Limit for Disposal
III. Role of the Bar Council of India in Punishing Guilty Advocates
1. Original Disciplinary Jurisdiction
2. Power of Withdrawal and Appellate Transfer
3. Detailed Rules Under Part VII of the BCI Rules
a. Formal Filing (Rule 1):
b. Better Particulars (Rule 2):
c. Show-Cause Notice (Rule 3):
d. Fixing the Inquiry (Rule 4 & 5):
e. Appearance and Ex-Parte Orders (Rule 6 & 7):
f. Right to be Heard and Recording Evidence (Rule 8 & 9):
4. Quasi-Criminal Standard of Proof
IV. Remedies Against the Order of Punishment
1. Statutory Review
2. Appellate Structure
3. Appeal to the Supreme Court of India
V. Landmark Judgments on Professional Misconduct
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I. "Professional or Other Misconduct" Meaning
1. Statutory Context Under the Advocates Act, 1961
As per Section 35(1) of the Advocates Act, 1961, 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. Thus, the statutory framework explicitly mandates the punishment of an advocate who commits professional or other misconduct.
However, the phrase "professional or other misconduct" has not been exhaustively defined within the text of the Advocates Act, 1961. To fill this statutory lacuna, the Supreme Court of India and various High Courts have interpreted and expanded the contours of this term through a series of seminal judicial pronouncements.
2. Judicial Interpretation of "Misconduct"
In the landmark case of State of Punjab v. Ram Singh Ex-Constable, (1992) 4 SCC 54 ,
The Supreme Court observed that the term "misconduct" is relative and must be construed in its context. It might involve moral turpitude, improper or wrong behavior, unlawful behavior, or a willful violation of an established and definite rule of action or code of conduct. The Court clarified that it does not encompass a mere error of judgment, carelessness, or innocent negligence in the performance of duty.
This formulation was further refined in Noratanmal Chaurasia v. M.R. Murli, (2004) 5 SCC 689, where the Supreme Court held that "misconduct" signifies improper behavior, intentional wrongdoing, or a deliberate violation of a rule or a standard of behavior.
Consequently, an advocate is bound to conduct themselves in a manner befitting the high traditions of this noble profession. If an advocate departs from these benchmark standards, they become liable for disciplinary action. The term "professional or other misconduct" is expansive; it covers not only violations of the professional ethics and etiquette codified by the Bar Council of India under Part VI, Chapter II of its Rules, but also encompasses a wider spectrum of behavior.
Defrauding or cheating a client, completely failing to file a case after accepting the brief and professional fees, taking instructions from third parties rather than the client, engaging in profit-making businesses, and using threatening or abusive language inside a courtroom have all been firmly held to constitute professional misconduct. However, in V.P. Kumaravelu v. The Bar Council of India & Ors., (1997) 4 SCC 266, The Supreme Court struck a vital distinction by holding that mere negligence on the part of an advocate, when entirely unaccompanied by moral delinquency or fraudulent intent, does not automatically amount to professional misconduct.
3. Scope of "Other Misconduct"
The inclusion of the word "other" before "misconduct" in Section 35 underscores the legislative intent to widen the disciplinary net. The term covers behavior both within the professional sphere and conduct in the advocateâs private or public life that renders them unfit to remain a member of the Bar. The determination of what constitutes "other misconduct" is left to the sound discretion of the Bar Councilâs Disciplinary Committee.
This aligns directly with Section 24-A of the Advocates Act, 1961, which bars any person from being admitted as an advocate on a State roll if they have been convicted of an offence involving moral turpitude.
In the case of Hikmat Ali Khan v. Ishwar Prasad Arya & Others, (1997) 3 SCC 131, the Supreme Court dealt with an advocate who assaulted his opponent in the courtroom with a knife and was subsequently convicted under the Indian Penal Code for attempting to murder. The Apex Court held that such an individual is entirely unworthy of remaining in the legal profession and ordered the permanent removal of his name from the State roll.
Similarly, in U.P. Sales Tax Service Association v. Taxation Bar Association, (1995) 5 SCC 716, The Supreme Court held that an advocate attending a court hearing while carrying firearms acts in gross violation of the dignity of the legal profession. Ultimately, the phrase "professional or other misconduct" grants ample discretionary power to the Disciplinary Committee to clean the stable of the profession when an advocate's conduct falls short of the expected high moral standards.
II. Role of the State Bar Council in Punishing Guilty Advocates
1. Power of the State Bar Council to Punish
Section 6(1)(c) of the Advocates Act, 1961 explicitly entrusts the State Bar Councils with the statutory function of entertaining and deciding cases of misconduct against advocates on their rolls. Historically, this disciplinary function was exercised by the respective High Courts, but the 1961 Act effectively transferred this autonomy to the Bar itself to ensure self-regulation.
Under Section 35(1), when a State Bar Council receives a formal complaint, or otherwise has reason to believe (suo motu) that any advocate on its roll is guilty of professional or other misconduct, it is statutorily mandated to refer the case for disposal to its Disciplinary Committee.
2. Composition of the Disciplinary Committee
Per the mandate of Section 9(1) of the Advocates Act, 1961, every Bar Council must constitute one or more Disciplinary Committees. Each committee consists of three members. Two members are elected by the State Bar Council from amongst its own members. The third member is co-opted by the Council from amongst advocates who have been on the State roll for at least ten years and who are not current members of the Council. The senior-most advocate among the members of the Disciplinary Committee functions as its Chairman.
3. Power to Withdraw and Transfer Proceedings
Under Section 35(1-A) of the Act, the State Bar Council is empowered, either on its own motion or on an application made to it by any interested person, to withdraw any proceeding pending before its Disciplinary Committee and direct the inquiry to be conducted by any other Disciplinary Committee within that same State Bar Council.
4. Procedure to be Followed by the Committee
Section 35(2) mandates that when a case is referred to the Disciplinary Committee, it must fix a clear date for the hearing. It is required to issue formal notices of the hearing to the advocate concerned and to the Advocate-General of the respective State, ensuring compliance with the principles of audi alteram partem.
5. Nature of Final Orders and Penalties
After affording the advocate concerned and the Advocate-General a fair opportunity of being heard, the Disciplinary Committee of the State Bar Council may, under Section 35(3), pass any of the following final orders:
a. Dismiss the Complaint: The committee may dismiss the complaint, or where the proceedings were initiated suo motu at the instance of the State Bar Council, direct that the proceedings be filed and dropped.
b. Reprimand the Advocate: The committee may formally censure or admonish the advocate. In Pralhad Saran Gupta v. Bar Council of India & Anr., (1997) 3 SCC 585, the Supreme Court punished an advocate by administering a formal reprimand for professional misconduct because he had improperly retained a sum of âš1,500 with himself for a brief period in connection with a settlement execution proceeding.
c. Suspension from Practice: The committee may suspend the advocate from practicing the law for such a specific duration as it may deem fit. During this period of suspension, the advocate is completely debarred from practicing before any court, tribunal, authority, or person across India. In P.D. Gupta v. Ram Murti & Anr., (1997) 7 SCC 147, an advocate who purchased his client's property which was the subject matter of active, ongoing litigation, and subsequently sold it at a substantial profit, was found guilty of gross professional misconduct and suspended from practice for one year.
d. Removal from the State Roll: The committee may order the permanent removal of the advocateâs name from the State roll of advocates. In Hikmat Ali Khan v. Ishwar Prasad Arya & Others, (1997) 3 SCC 131, this ultimate penalty was upheld by the Supreme Court following the advocate's conviction for an attempt to murder his professional opponent.
Furthermore, Section 41 mandates that whenever an order of reprimand or suspension is made against an advocate, a permanent record of the punishment must be entered against their name in the State roll, and their certificate of enrollment must be recalled.
6. Procedural Powers of the Committee
To ensure effective fact-finding, Section 42(1) vests the Disciplinary Committee of a Bar Council with the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (now read alongside the relevant provisions of the Bharatiya Nagarik Suraksha SanhitÄ, 2023 for procedural enforcement), in respect of the following matters:
a. Summoning and enforcing the attendance of any person and examining them on oath.
b. Requiring the discovery and production of any relevant documents.
c. Receiving evidence directly on affidavits.
d. Requisitioning any public record or certified copies thereof from any court or public office.
e. Issuing legal commissions for the examination of witnesses or documents.
f. Any other matter which may be prescribed by the rules.
However, a strict statutory proviso clarifies that no Disciplinary Committee has the right to compel the attendance of any Presiding Officer of a Court except with the prior formal sanction of the High Court to which such court is subordinate. Similarly, the attendance of any officer of a Revenue Court requires the previous sanction of the State Government.
7. Fiduciary and Judicial Status of Proceedings
Under Section 42(2), all proceedings before a Disciplinary Committee of a Bar Council are legally deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code (now corresponding to the relevant provisions of the Bharatiya Nyaya SanhitÄ, 2023).
For the seamless execution of its processes, Section 42(3) allows the Disciplinary Committee to send its summons or processes to any Civil Court within India. The concerned Civil Court is statutorily bound to serve such processes and enforce attendance or production as if the process had originated from its own bench.
8. Technical Functioning and Majority Opinions
Section 42(4) explicitly provides that the absence of the Chairman or any member of the Disciplinary Committee on a scheduled hearing date shall not invalidate the ongoing proceedings or intermediate orders, provided that no final order is passed unless the Chairman and all members of the Disciplinary Committee are physically present.
Section 42(5) dictates that if no final order can be made due to the want of a majority opinion among the committee members, the case, along with their split opinions, must be laid before the Chairman of the concerned Bar Council. If the Chairman of the Bar Council is already a member of that specific committee, the matter goes before the Vice-Chairman. The Chairman or Vice-Chairman, after conducting a fresh hearing, delivers their independent opinion, and the final order of the Disciplinary Committee must follow that opinion.
9. Costs and Continuity of Proceedings
Under Section 43, the Disciplinary Committee may make any order as to the costs of the proceedings as it deems fit. Such an order is fully executable as if it were a formal decree passed by the High Court (if ordered by a State Bar Council) or the Supreme Court of India (if ordered by the Bar Council of India).
Furthermore, Section 36-A ensures continuous proceedings; if a Disciplinary Committee ceases to exercise jurisdiction and is succeeded by a new committee, the succeeding committee can seamlessly resume the proceedings from the exact stage at which they were left by its predecessor.
10. Statutory Time Limit for Disposal
Section 36-B establishes a strict statutory time frame, mandating that the Disciplinary Committee of a State Bar Council must conclude its disciplinary proceedings within a strict period of one year from the date of receipt of the complaint or the date of initiation of suo motu action. If the State Bar Council fails to conclude the proceedings within this one-year window, the proceedings automatically stand transferred to the Bar Council of India for disposal.
In Mangu Shrihari v. Bar Council of the State of A.P. (1983) 2 ALT 241,
The Andhra Pradesh High Court emphasized that allegations of misconduct against an advocate must be resolved expeditiously within this one-year timeframe. This serves a dual purpose: it either swiftly clears the cloud cast upon an innocent advocate's reputation or promptly purges the noble profession of undesirable members.
III. Role of the Bar Council of India in Punishing Guilty Advocates
1. Original Disciplinary Jurisdiction
While the State Bar Councils handle advocates enrolled on their specific territorial rolls, Section 36(1) of the Advocates Act, 1961 vests the Bar Council of India (BCI) with distinct original jurisdiction. Where on receipt of a complaint or otherwise, the BCI has reason to believe that any advocate whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its own Disciplinary Committee. The composition of the BCI's Disciplinary Committee mirrors the structure laid down under Section 9(1) of the Act.
2. Power of Withdrawal and Appellate Transfer
Under Section 36(2), the Disciplinary Committee of the Bar Council of India is empowered, either on its own motion, on a report submitted by any State Bar Council, or on an application made by an interested party, to withdraw for inquiry before itself any disciplinary proceeding pending against an advocate before the Disciplinary Committee of any State Bar Council.
When disposing of cases under Section 36, the BCIâs Disciplinary Committee must closely follow the procedure laid down in Section 35. In doing so, any reference to the Advocate-General of a State is construed as a reference to the Attorney-General of India, as mandated by Section 36(3). Under Section 36(4), the BCI can pass any final order that a State Bar Council is competent to issue under Section 35(3), and the provisions governing procedural powers (Section 42) and costs (Section 43) apply equally.
3. Detailed Rules Under Part VII of the BCI Rules
To supplement these statutory sections, Chapter I of Part VII of the Bar Council of India Rules codifies the exact procedure to be observed for complaints:
a. Formal Filing (Rule 1): A complaint against an advocate must be submitted in the form of a petition, duly signed and verified as mandated under the Code of Civil Procedure, 1908. If the complaint is drafted in a regional language, an official English translation must accompany the petition along with the prescribed BCI fees.
b. Better Particulars (Rule 2): Before formally sending a complaint to the Disciplinary Committee, the Bar Council may direct the complainant to furnish further and better particulars within a specified timeframe, and may call for initial comments from the respondent advocate.
c. Show-Cause Notice (Rule 3): Once referred, the Registrar must expeditiously issue a show-cause notice to the advocate concerned, requiring them to file their written statement of defense, supporting documents, and affidavits within a specified date.
d. Fixing the Inquiry (Rule 4 & 5): The Chairman of the Disciplinary Committee must fix the date, time, and place for the inquiry, which should not ordinarily exceed 30 days from the date of reference. The Registrar must serve formal notices to all concerned parties or their appearing advocates.
e. Appearance and Ex-Parte Orders (Rule 6 & 7): Parties may appear in person or through an authorized advocate who must file a valid Vakalatnama containing their enrollment details, address, and contact number. If either the complainant or respondent fails to appear despite service of notice, the committee may proceed ex-parte or issue fresh notices. Ex-parte orders can be set aside if sufficient cause for the absence is demonstrated.
f. Right to be Heard and Recording Evidence (Rule 8 & 9): The Committee must hear the Attorney-General, the Additional Solicitor-General, or the Advocate-General (or their appearing counsel) along with the primary parties. The evidence given before the committee must preferably be recorded in English, signed by the Chairman, and day-to-day proceedings must be meticulously recorded in a case diary maintained by the Registrar (Rule 10).
4. Quasi-Criminal Standard of Proof
Rule 14 establishes that the finding of the majority of the Disciplinary Committee members shall prevail as the final decision of the committee. Regarding the evidentiary standard required in these proceedings, the Supreme Court in L.D. Jaisinghani v. Naraindas [AIR 1976 SC 373] laid down that a disciplinary proceeding before the Bar Council is essentially quasi-criminal in nature. Therefore, the standard of proof required to establish professional misconduct is strict and equivalent to the standard required for convicting an accused in a criminal caseâmeaning the misconduct must be proved beyond a reasonable doubt, rather than on a mere preponderance of probabilities.
IV. Remedies Against the Order of Punishment
An advocate aggrieved by an adverse order passed by a Disciplinary Committee has access to specific statutory remedies under the Advocates Act, 1961:
1. Statutory Review
Under Section 44 of the Act, the Disciplinary Committee of any Bar Council (State or India) may, either on its own motion or otherwise, review any order passed by it within 60 days from the date of execution of that order. However, a crucial statutory safeguard applies: no order of review passed by the Disciplinary Committee of a State Bar Council can take effect unless it has been explicitly approved and ratified by the Bar Council of India.
Separately, under Section 48-AA, the Bar Council of India or any of its non-disciplinary committees may review any general order passed by it within 60 days of its issuance. The detailed procedural steps for filing review petitions are codified under Chapter II of Part VII of the Bar Council of India Rules.
2. Appellate Structure
If an advocate is punished by the Disciplinary Committee of a State Bar Council, they have a statutory right to prefer an appeal to the Bar Council of India under Section 37 of the Advocates Act, 1961. This appeal must be preferred within 60 days from the date on which the order is communicated to the aggrieved person. The procedural framework for filing, evaluating, and arguing these appeals is set forth in Chapter I of Part VII of the BCI Rules.
3. Appeal to the Supreme Court of India
Under Section 38 of the Advocates Act, 1961, any person who remains aggrieved by a final order passed by the Disciplinary Committee of the Bar Council of India (whether passed in its original jurisdiction or on an appeal from a State Bar Council) may prefer a statutory appeal directly to the Supreme Court of India. This appeal must be filed within 60 days from the date on which the BCI's order is formally communicated to them. The Supreme Court retains full jurisdiction to pass any order it deems fit, including varying, enhancing, or reducing the nature of the punishment awarded by the Bar Council of India.
V. Landmark Judgments on Professional Misconduct
1. V.C. Rangadurai v. D. Gopalan [AIR 1979 SC 281]
In this case, the appellant, an advocate, was entrusted by two elderly, vulnerable clientsâone of whom was a 70-year-old deaf manâwith two promissory notes to file recovery suits against their landlady. The clients paid the advocate his requested fees and court expenses. The advocate failed to file the suits within the statutory period of limitation and actively misled his clients by falsely representing that the suits were pending, even providing them with fabricated hearing dates.
Upon discovering the deception, the clients filed a complaint with the State Bar Council of Tamil Nadu, whose Disciplinary Committee suspended the advocate for six years. On appeal, the Bar Council of India upheld the misconduct but reduced the suspension to one year.
The Supreme Court, while dismissing the advocate's subsequent appeal, firmly affirmed the finding of gross professional misconduct. The Court emphasized that the relationship between a lawyer and a client is deeply fiduciary, demanding the highest standards of good faith. The judgment is notable for introducing elements of restorative justice into professional correction, directing the advocate to perform pro-bono legal service during his suspension.
2. Supreme Court Bar Association v. Union of India & Another, (1998) 4 SCC 409
This constitutional bench judgment arose out of a challenge to an earlier ruling (In Re: Vinay Chandra Mishra), where the Supreme Court had suspended an advocate's license to practice in exercise of its own inherent contempt jurisdiction under Article 129 of the Constitution. The Supreme Court Bar Association argued that the statutory power to suspend or revoke an advocate's license lies exclusively within the domain of the Bar Councils under the Advocates Act, 1961.
The Constitution Bench explicitly overruled In Re: Vinay Chandra Mishra, holding that the power to punish for contempt of court is entirely distinct from professional disciplinary jurisdiction. The Supreme Court clarified that while it retains the absolute power to regulate courtroom conduct and can debar an unruly advocate from appearing before its own bench in a specific case of contempt, it cannot completely suspend or revoke their general license to practice law. That disciplinary power remains exclusively vested with the Bar Councils under the Advocates Act, 1961.
3. D.S. Dalal v. State Bank of India and Others, 1993 SCC Supl. (3) 557
In this case, the advocate assisted a client in securing a financial loan from the State Bank of India. To expedite the loan approval, the advocate knowingly prepared and submitted forged property title documents as collateral, falsely representing that the property belonged to the borrower and was free from encumbrances. The bank later discovered the forgery during verification.
The Supreme Court held the advocate guilty of severe professional misconduct under Section 35. The Court ruled that advocates are under a strict public duty to uphold the rule of law and act with absolute honesty. Deliberately fabricating documents to deceive a financial institution constitutes a grave violation of the fiduciary duty that an advocate owes to society and the legal system.
4. Ex-Capt. Harish Uppal v. Union of India & Another, (2003) 2 SCC 45
This seminal decision addressed the frequent disruptions caused by lawyers calling for strikes and boycotts of courts. A Constitution Bench of the Supreme Court categorically declared that advocates have no right to call for or participate in strikes or boycotts of court proceedings.
The Court held that such strikes strike at the very root of the administration of justice and constitute professional misconduct. It clarified that an advocate who has accepted a brief cannot refuse to appear without committing a breach of professional duty, and the only rare exception permitted is a peaceful protest outside court hours, or where a major protest is officially recognized by the Bar Council.
5. Bar Council of Maharashtra v. M.V. Dabholkar & Others, (1975) 2 SCC 702
In this case, certain advocates practiced "touting" and aggressive commercial solicitation by positioning themselves at the entry points of magistrates' courts to intercept potential litigants and solicit work.
The Supreme Court heavily condemned this practice, holding that the legal profession in India is a noble public service and not a commercial trade or business. The Court upheld the Bar Council's strict restrictions on advertising and solicitation under Section 49(1)(c), ruling that commercial advertisement by legal practitioners degrades the dignity of the profession and constitutes gross professional misconduct.
6. O.N. Mohindroo v. Bar Council of Delhi & Others, [AIR 1968 SC 888]
This case involved a constitutional challenge to the legislative competence of Parliament to enact the Advocates Act, 1961, specifically regarding the disciplinary powers vested in the Bar Councils.
The Supreme Court upheld the constitutional validity of the Act, clarifying that the power to regulate the legal profession, including the creation of autonomous statutory bodies like the Bar Councils to enforce disciplinary standards under Sections 35 and 36, falls squarely within the legislative domain of Parliament under Entries 77 and 78 of List I (Union List) of the Seventh Schedule.
7. P.D. Gupta v. Ram Murti & Anr., [AIR 1998 SC 283]
In this matter, an advocate representing a client in a property dispute bought the very property that was the subject matter of the active litigation from his client at a highly depressed price, and subsequently sold it to a third party for a large profit.
The Supreme Court strongly condemned the transaction, holding that an advocate must never buy or trade in the subject matter of his client's litigation. Such conduct exposes the advocate to a direct conflict of interest, misuses the client's confidence, and completely compromises professional independence, thereby amounting to severe professional misconduct.
8. S. Ramakrishnan v. Bar Council of Tamil Nadu and Puducherry, 2017 SCC OnLine Mad 33020
In this progressive judgment, the Madras High Court dealt with a complaint where an advocate had subjected a client to sexual harassment during the course of professional legal consultations in his chamber.
The High Court ruled that the scope of "professional or other misconduct" under Section 35 is broad enough to encompass gender-based offenses and violations of human rights. The Court held that sexual harassment of a client completely shatters the fiduciary relationship of trust and constitutes a gross violation of professional ethics, justifying immediate suspension from practice.
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