professional ethics law assignment

Professional Ethics - Notes, Case Laws And Study Material

Legal bites provides comprehensive professional ethics study materials for students and lawyers to deepen their understanding of the subject..

Legal Bites provides comprehensive Professional Ethics study materials for students and lawyers to deepen their understanding of the subject. The series covers important topics and case studies and offers valuable insights for those seeking to improve their knowledge. Legal Bites is committed to providing quality and insightful study materials.

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Module i: advocacy.

• Seven Lamps of Advocacy
• History of Legal Profession on Indian Advocate Act, 1961
• Equipment of a Lawyer
• Rights of Advocates
• Salient Features of Advocates Act, 1961

Module II: Bar Council

• Bar Council of India: Power & Function
• State Bar Council: Power & Function

Module III: Ethics of Legal Profession & Accountancy for Lawyers

• Meaning Nature and Need of Professional Ethics
• Standard of Professional Conduct and Etiquette
• Punishment for Professional or Other Misconduct
• Conduct of Advocates and Disciplinary Proceedings
• Accounting & Law: Nature, Functions & Importance

Module IV: Contempt of Court

• Contempt of Court - History & Significance
• Kinds of Contempt
• Punishment & Remedies

Other Important articles and study material on Professional Ethics

• Suo Moto Cognizance by the Judiciary

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Assignment - Professional ethics notes and summary

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Subject: Professional Ethics

B.A.LL-IXth Sem

Subject Teacher: Dr. Md. Junaid

Study Material of Unit-III-(D)

Topic: Professional Ethics: Rights and Duties of an Advocate

Professional Ethics: Rights and Duties of an Advocate

Professional ethics encompasses an ethical code governing the conduct of persons engaged in the practice of law as well as persons engaged in the legal sector. All members of the legal profession have a paramount duty to the court and towards the administration of justice. This duty prevails over all other duties, especially in the circumstances where there may be a conflict of duties. It means a code of rules which regulates the behaviour and conduct of a practicing lawyer towards himself, his client, his opposite party, his counsel and of course towards the court. Ethics means principles of behaviour which are applied to an ordinary citizen in the society shall be the standards of morals for a lawyer too.

Professional ethics consist of those fundamental values on which the profession has been built. Legal ethics is one of the professional ethics which lays down certain duties for the observance of its members, which he owes to the society, to the court, to the profession, to his client and to himself. The practicing lawyer shall have the social responsibility and dignity of the legal profession and high standard of integrity and efficient service to his client as well as for public welfare.

Objective of the Professional Ethics

The main object of the professional ethics of advocacy is to maintain the dignity of the legal profession. Chief Justice Marshall has observed in this respect, The fundamental aim of legal ethics is to maintain the honour and dignity of the law profession to secure a spirit of friendly co- operation between the bench and bar in the promotion of higher standard of justice, to establish honourable and fair dealings of the counsel with his client, opponent and witness, to establish a

spirit of brotherhood with bar itself and to secure that lawyers discharge their responsibilities to the community generally.

Legal profession is not a business but a profession. It has been created by the state for the public good. Consequently, the essence of the profession lies in the three things:

Organisation of its members for the performance of their function;

Maintenance of certain standards, intellectual and ethical for the dignity of the profession;

Subordination of pecuniary gains to efficient services

The legal profession is necessarily the keystone of the arch of Government. If it is weakened, and allowed to be a subject of the corroding and demoralising influence of those, who are controlled by craft, greed or gain or other unworthy motive, sooner or later the arch, must fall. The future of the country depends upon the maintenance of the shrine of the justice, pure and unrolled by the advocates. Thus, it cannot be so maintained, unless the conduct and motives of the members of the legal profession are what they object to be. Therefore, it becomes the plain and simple duty of the lawyers to use their influence in every legitimate way to help and make the Bar what it is ought to be. A code of ethics is one method of furtherance of this end.

Nature of Professional Ethics

A code of ethics is developed for each profession. Suppose you write articles in a newspaper. Professional ethics require that you verify facts before you write that article. Similarly, in India for lawyer also a set of guidelines have been laid down so far as professional ethics are concerned, which defines their conduct in the profession that is highly competitive and dynamic. Indian law requires lawyers to observe professional ethics to uphold the dignity of the profession. Lawyers are expected to follow professional ethics and that they are accountable for dishonest, irresponsible and unprofessional behaviour. Further, lawyers can lose the license to practice if they are found guilty of unethical practices that tarnish the dignity of their profession. A lawyer must adhere to the professional norms, for fair dealing with his client and to maintain the dignity of the profession.

Advocate Act, 1961

Not communicate in private:

An advocate shall not influence the decision of the court by any illegal or improper means. It prohibits the private communication with the judge relating to pending case. If an advocate does so it amounts to professional misconduct

Refuse to act in an illegal manner towards the opposition

The rule requires the advocate to use his best effort to restrain and prevent his client from resorting to sharp or unfair practice opposite or from doing anything in relation to the in court, opposing council or parties which the advocate himself ought not to do. It also requires the advocate to refuse to represent the client who persists in such improper conduct. The Rule makes it clear that the advocate shall not consider himself mere mouthpiece of the client and shall exercise his own judgement in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings and using intemperate language during arguments in the court.

Appear in proper dress code

An advocate shall appear in court at all times only in the prescribe dress and his appearance shall always be presentable.

Refuse to appear in front of relations

An advocate shall not enter appearance, act, plead, or practice in any way before a court, tribunal, or authority mentioned in section 30 of the Advocates Act, 1961 if the sole or any member thereof is related to the advocate as father, nephew, grand-father, son, grand-son, uncle, brother, nephew, first cousin, husband, mother, wife, daughter, sister, niece, aunt, sister-in-law, mother-in-law, and father-in-law, son-in-law, daughter-in-law. For this purpose of this rule, court shall mean a court, Bench or tribunal in which abovementioned relation of the advocate is a judge, member or the presiding officer.

Not to wear bands or gowns in public places

The rule requires the advocate not to wear bands or gowns in public place other than in court except on such ceremonial occasions and at such places as the Bar Council of India and the court may prescribe.

Not to represent establishments of which he is a member

The rule provides that an advocate shall not appear in or before any court or tribunal or any other authority for or against an organization, institution, society, or corporation if he is a member of executive committee of such organization, institution, society, or corporation.

However, it has been made clear that this rule shall not apply to such a member appearing as ëamicus curiaeí or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association.

Not appear in matters of pecuniary interest:

An advocate shall not act or plead in any matter in which he himself has some pecuniary interest.

Not stand as surety for client

An advocate shall not stand as a surety, or certify that soundness of a surety for his client required for the purpose of any legal proceedings.

Rules on Advocates Duty towards Client:

Rule 11 to 33 deal with the duties of an advocate to his client. These rules may be explained as follow:

Bound to accept briefs

Rule 11 provides that an advocate is bound to accept any brief in the court or tribunal or before any authority which he proposes to practice at fee consistent with his standing at bar and also nature of case.

In S. Chaudhary v. State (1984), the Supreme Court has made it clear that if an advocate accepts the brief of a criminal case, he must attend the case day to day and if he does not do so, he will be held liable for breach of professional duty.

Not to withdraw from service:

Rule 12 provides that an advocate shall not ordinarily withdraw from engagements once accepted without sufficient cause and unless reasonable and sufficient notice given to the client.

suppression of material capable of establishing the innocence of the accused must be scrupulously avoided.

Not to disclose the communications between client and himself:

Rule 17 provides that an advocate shall not commit directly or indirectly any breach of the obligation imposed by section 126 of Indian Evidence Act.

An advocate should not be a party to stir up or instigate litigation:

Rule 18 provides that an advocate shall not at any time be a party to the fomenting litigation.

Rule 19 makes it clear that an advocate shall not act on the instruction of any person other than his client or his authorized agent.

Not charge depending on success of matters:

Rule 20 provides that the fee of an advocate depending upon the success of the suit is considered as oppose to public policy. Contract for contingent fee is also hit by section 23 of the Indian Contract Act.

Agreement to share the proceeds of the litigation may amount to champerty. In such conditions the advocate has direct interest in the subject-matter and cannot act with the sense of detachment or with the attitude of objectivity. Such agreement degrades the honourable profession. To prevent such an agreement rule 20 provides that an advocate shall not stipulate for free contingent on the results of litigation or agrees to share the proceeds thereof.

Not receive interest in actionable claim

Rule 21 provides that an advocate shall not buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim.

However, it has been made clear that nothing in this rule shall apply to stocks, shares, and debentures or government securities or any instruments which are, for the time being, by law or custom negotiable or to any mercantile document of title to goods.

Not to bid or purchase property arising of legal proceeding :

Rule 22 provides that an advocate shall not directly or indirectly bid for or purchase either in his own name or any other name for his own benefit or benefit of any other person, any property sold in execution of decree or other proceeding in which he was professionally engaged.

The rule makes it clear that this prohibition does not prevent an advocate from bidding for or purchasing for his client any property which his client may himself legally bid for or purchase, provided the advocate is expressly authorised in writing in this behalf.

Not to adjust fees against personal liability

Rule 23 provides that an advocate shall not adjust fee payable to him by his client against his own personal liability to the client which liability does not arise in course of his employment as an advocate.

Rule 24 provides that an advocate shall not do anything whereby he abuses or take advantage of the confidence repose in him by his client.

Keep proper accounts

Rule 25 provides that an advocate should keep accounts of the clients money entrusted to him and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars.

Divert money from accounts:

Rule 26 provides that where money are received from or on account of client, the entries in the account should contain a reference as to whether the amounts have been received for fees or expenses and during the course of the proceeding, no advocate shall, accept with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees.

Intimate the client on amounts

Rule 27 provides that where any amount is received or given to him on behalf of his client, the fact of such receipt must be intimated to the client as early as possible. If the client demands the

party. It was held by the Supreme Court that ìÖit is not in accordance with professional etiquette for an advocate while retained by one party to accept the brief of the other. It is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the factsÖ. Counselís paramount duty is to the client, and where he finds that there is conflict of interests, he should refrain from doing anything which would harm any interests of his client. A lawyer when entrusted with a brief is expected to follow the norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust.î The Supreme Court upheld his being found guilty of malpractice by the Bar Council of India in disciplinary proceedings, and he was suspended from practise for the period of one year.

The consequences of a conflict of interest situation for the lawyer can be severe and costly. For example, acting with a conflict of interest can result in civil liability for professional malpractice as well as disciplinary action. Some very serious consequences also flow from a proven claim in contract, tort or equity, including:

 disqualification from representation of one or more clients  forfeiture of fees charged; the inability to charge for work in progress and other time invested;  embarrassment, inconvenience and aggravation of defending a malpractice claim or investigation;  lost time spent on defending a malpractice claim or investigation

The relationship is personal and fiduciary:

It is a relation of trust and confidence. It is confidential requiring a high degree of fidelity and good faith. In V. Rangadurai V. D. Gopalan, AIR 1979 SC 281, Justice Sen has observed that the relation between the advocate and his client is purely personal involving a highest personal trust and confidence.

Advocate's fee- fixation of fees:

By the present day usages of the Bar, the following elements usually enter into consideration in fixing the amount of fee:

a) The qualifications and standing of advocates who is asked to render professional service. It is evident that service rendered by the person of superior education and rich experience is likely to be more valuable and of better quality than the advice given by a person who is less qualified;

b) The difficulty in the problem involve in the case. The more intricate the case the greater will be the degree of skill and amount of labour required;

c) The amount of time required to render professional service;

d) The amount involved in the suit;

e) The result expected to be accomplished as a consequence of the lawyer's exertion;

f) The customary charges of the Bar for such services.

Contingent fee and right of lien

The fee depending upon the success of the suit or proceeding is regarded as against the public policy. The agreement for Contingent fee is hit by section 23 of the Indian Contract Act. Rule 9 framed by the Bar council of India expressly provide that an advocate should not act or plead in any matter in which he is himself be pecuniary interested. The agreement for the contingent fee is looked upon with disfavour, and later as inconsistent with the high ideals of the Bar.

In the case of R. Saxena V. Balram Prasad Sharma; AIR 2000 SC 2912; The Supreme Court has held that an advocate cannot claim a lien over a litigation file entrusted to him for his fees.

Rules on Advocateís Duty to Opponents:

Not to negotiate directly with opposing party

An advocate shall not in any way communicate or negotiate or call for settlement upon the subject matter of controversy with any party represented by an advocate except through that advocate representing the parties.

Carry out legitimate promises made

An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court.

 Rule 40 requires every advocate on the rolls of the State Bar Council to pay a certain sum to the state bar council.  Rule 41 provides that all the sums so collected by the state bar council shall be credited in a separate fund to be known as ìBar Council of India Advocates welfare fund for the Stateî and shall be deposited in the bank as provided there under.  (i) According to rule 41(2) the Bar Council of India Advocates Welfare fund Committee for the State shall remit 20% of the total amount collected and credited to its account, to the bar council of India by the end of every month which shall be credited by the Bar council of India and the Bar council of India shall deposit the said amount in a separate fund to be known as ìBar Council of India Advocates Welfare fund.î  (b) (ii) According to rule 41(3) the rest 80% of the total sum so collected by the Bar Council of India Advocate Welfare Fund Committee for the state shall be utilized for the welfare of the advocates in respect of welfare schemes sponsored by the respective State Bar Council.  Rule 42 deals with the consequences of non payment of the said amount by the advocate. It provides that if an advocate fails to pay the aforesaid sum within the prescribed time, the secretary of the State Bar Council shall issue to him a notice to show cause within a month why his right to practice be not suspended. In case the advocate pays the amount together with late fee within the period specified in notice, the proceeding shall be dropped. If the advocate does not pay the amount or fails to show sufficient cause, a committee of three members constituted by the state bar council in this behalf may pass an order suspending the right of the advocate to practice.  Rule 43 provides that an advocate who has been convicted of an offence mentioned under section 24-A of the Advocates Act or has been declared insolvent or has taken full time service or part time service or engages in business or any avocation inconsistent with his practicing as an advocate or has incurred any disqualification mentioned in the Advocates Act or the rules made there under, shall send a declaration to the effect to the respective state bar council in which the advocate is enrolled, within 90 days from the date of such disqualification.

 Rule 44 provides, an appeal shall lie to the bar council of India at the instance of an aggrieved advocate within a period of 30 days from the date of the order passed under rule 42 and 43.  (e)(i) Rule 44-A provides that there shall be a Bar council of India Advocates Welfare Committee consisting of five members elected from amongst the members of the council. The term of the members of the committee shall be co-extensive with their term in the Bar Council of India. Rule 44-b makes it clear that the Bar Council of India shall utilise the funds received under rule 41(2), stated above, in accordance with the scheme which may be framed from time to time.

Rules on Advocateís Duty in Imparting Training:

Rule 45 framed by the Bar Council of India makes it clear that it is improper for an advocate to demand or accept fees or any premium from any person as a consideration for imparting training in law under the rules prescribed by the State Bar Council to enable such person to qualify for enrolment under the Advocates Act, 1961.

Rules on Advocates Duty to render legal aid:

The preamble of the Constitution of India assures justice, social, economic and political to all citizens of the country. Articles 14 & 16 of the Constitution of India impose an implicit responsibility on the State to ensure that none is deprived of legal assistance for reasons of economic or other disabilities so that equal justice is provided to all citizens of the country. Further, the principle contained in Article 39-A are fundamental and cast duty on the State to secure that the operation of the legal system promotes justice to all citizens and particularly the poor and the marginalized. However, despite this Constitutional mandate, poor remain deprived of appropriate legal assistance for a long time even after independence.

In this situation advocates have a role to play. Legal profession is monopolistic in character and this monopoly itself inheres certain high traditions, which its members are expected to upkeep and uphold. Law is an Hon'ble profession and an Advocate is an Officer of justice and friend of the Court. He is an integral part for the administration of justice. From the ancient times, the legal obligations of the Advocates to conduct the case of a poor litigant without reward when so required by the Court has been recognized not only in our country, but also in England, US and

 Rule 51 an advocate may review parliamentary bills for a remuneration, edit legal text books at a salary, coach pupils for legal examination, set and examine question papers and subject to the rules against advertising and full time employment, engage in broadcasting, journalism, lecturing and teaching subject both legal and non legal.  Rule 52 makes it clear that nothing in these rules shall prevent an advocate from accepting after obtaining the consent of the state bar council, part-time employment provided that in the opinion of the state bar council, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession.

Probable Questions

• Define Professional Ethics and discuss the Rules governing Professional Ethics of Advocate
• Explain in detail the various standards of Professional Ethics to be followed by Advocate
• Explain briefly the following: i. Advocateís Restriction On Other Employment ii. Advocates Duty To Render Legal Aid iii. Advocateís Duty To Opponents iv. Advocates Duty Towards Client
• Multiple Choice

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Professional misconduct in the legal profession – a critical analysis

• Legal Blogs
• November 8, 2022

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:

• 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]

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.

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-

• Dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed.
• Reprimand the advocate
• Suspend the advocate from practice for such periods as it may deem fit.
• 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.

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.

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.

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