Professional Misconduct Under The Advocates Act, 1961
In this blog post, Sreeraj
K.V., the student of Government Law College, Ernakulam, Kerala, writes about
Professional misconduct under the Advocates Act, 1961. The blog post covers
areas like the definition of the term misconduct, provisions under the Advocates
Act as well as various important cases dealing with the issue of 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 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 a misdemeanour,
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 play 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:
1.
Existence of a body of specialized knowledge or techniques.
2.
Formalized method of acquiring training and experience.
3.
Establishment of a representative organization with
professionalism as its goal.
4.
Formation of ethical codes for the guidance of conduct.
5.
Charging of fees based on services but with due regards to the priority
of service over the desire of monetary rewards.
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Misconduct
means any 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 behaviour before a Magistrate
·
Furnishing false information
·
Giving improper advice
·
Misleading the clients in court
·
Not speaking 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 deal with
professional misconduct of lawyers and advocates in India, which read as:
A person
is found guilty of professional misconduct; it 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 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]
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 Advocate
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
advertisement or soliciting; it is against advocate’s code of ethics. He is
also not entitled to any advertisement through circulars, personal
communications or interviews, he is not entitled to demand fees for training
and 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 behaviour 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
the decision was made in a humanitarian manner, considering the future of the
accused in this case. The court held that “even so justice has a correctional
edge, a socially useful function, especially if 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 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 and but did not jeopardize 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. Courts have dealt with various
cases of professional misconduct wherein attempt of murder by the advocate
towards his client have also been reported. Hence, there must be interference
from concerned authorities so that persons with a criminal background are 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 Bar Council can implement
certain rules and regulation so that the conduct of the person who is showing
criminal behaviour can be controlled strict guidelines ensuring that the person
no longer acts unlawfully against his profession. There must be various career
guidance and development programs conducted by the Bar Council immediately
after enrolment so that new legal professionals 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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Footnotes:
[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
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