A.M. AMIN UDDIN VS.

BANGLADESH BAR COUNCIL AND OTHERS

68 DLR AD (2016) 352

Appellant: Respondent:

A.M. Amin Uddin Bangladesh Bar Council and Ors.

Advocates appeared:

Md. Riaz Uddin Khan and Sakib Rezwan Kabir, Advocate On Record, for the appellant

Bench:

M. Moazzam Husain, J.

Judgment Delivered on: 14 June 2016

Factual Matrix:

The petitioner is a learned and renowned advocate of the Supreme Court. Election Commission
of Bangladesh issued a circular. Clause 3 of this circular states that the paurasabha mayors are
holding office of profit and they must resign if they want to contest in the upcoming election.
The petitioner filed a writ petition challenging the circular given by the Election Commission on
behalf of two Mayors of Thakurgaon and Tangail. Consequently, the High Court Division passed
verbal order in the court in favor of the petition. The High Court Division held that the
operation of the circular be stayed. The petitioner advocate issued a certificate to that effect to
the Election Commission. As a result, the Election Commission issued another certificate
allowing the Paurasabha Mayors to contest in Election while holding office of profit. Later,
when the High Court Division published its full written judgement, High Court Division gave
effect to the order only in favor of those two mayors only. When the Election Commission
received the full judgement, they issued a letter to the Bar Council against the learned advocate
petitioner for misleading the Election Commission and violating professional ethics. A complaint
was lodged against him for “misconduct”. But the Bangladesh Bar Council initiated trial against
the learned advocate without following proper formal inquiries. The petitioner was aggrieved
by these acts of the Bar Council and came before the court for the prayer to quash the
proceedings initiated against him in Tribunal-1 of the Bar council.
Argument on behalf of the Appellant:

Mr. Riaz Uddin khan learned advocate appearing on behalf of the Advocate -petitioner brough
several points to prove that it was not a misconduct and also that the initiation of the suit in the
Bar Council Tribunal was not done according to the rules.

Petitioner argued that the issuance of the certificate by him was a bonafide act. When the court
stayed the order of the Election Commission the petitioner issued the certificate on the basis of
the verbal judgment given by the court. also, the Judgement wasn’t modified at the time when
he issued the certificate, so it was a bonafide act from his side.

The petitioner further argued that when he made his concern about the change of the
judgement known to the Honorable Judge. The Judge made it very clear that he could do so
because it falls within his privilege. So, the intention of the petitioner is bonafide.

The learned advocate for the petitioner also alleged that there was violation of lawful
procedure. After the executive committee heard Mr Amin’s reply, they fixed a date when the
parties were supposed to be present so they can hear both the parties. But this meeting never
took place and the Bar Council filed complaint to the Tribunal no. 1 saying that they found
primary elements of misconduct.

According to rule 41A of the Legal Practitioners and Bar Council Rules, a complaint has to be
lodged with a fees of Tk. 1000/- but no fees has ever been paid by the EC. So, the complaint
petition was not a valid one and it was improper.

Bar Council completely overlooked tule 42 which requires the Bar Council to direct an initial
inquiry into the allegation with the goal to protect the Advocates from unnecessary harassment
in misconceived, untenable and vexatious cases.

Another argument from the petitioner side is that the Bar Council Bar Council completely
ignored the well-settled legal position that unless the act or omission on the part of a lawyer as
alleged, is willful or actuated by ulterior motive it cannot be said to have constituted
'professional misconduct'.

The most important contention was that the presiding Honorable Judge of the order clarified
the issue regarding the slight modification done afterwards which was stated by the petitioner
in the reply which clearly proves that it doesn’t come within the purview of misconduct. But the
Bar Council and Election Commission ignored it completely also remained ignorant of another
writ petition of the same subject matter which was applicable to all the candidates just after
three days of the previous one.
Argument on behalf of the respondent:

The respondent’s main argument was that Mr. Amin had committed professional misconduct.
The further contended that the stay order of the court was fabricated by Mr Amin willfully.

They further stated that the issuance of certificate by Mr Amin before the written order was
passed was hurried and the issuance itself is questionable.

Decision:

The High Court Division declared that the writ was maintainable and the rule was made
absolute. The court held that there was no misconduct from the petitioner and the impugned
initiation and continuation of the proceeding against the petitioner was declared to have been
initiated and continued without lawful authority and it was quashed

Reasoning:

The High Court Division referred several cases to explain the act of “misconduct”. The court first
tried to ascertain whether there was any misconduct or not. The court while settling this issue
referred to a numerous scholarly texts and judgments from both domestic and the courts of
abroad.

According to Black’s Law Dictionary “misconduct” is “An attorney's dishonest attempt to

persuade a court or jury by using deception or reprehensible methods.” In Stroud's Judicial
Dictionary "Misconduct means, misconduct arising from ill-motive; acts of negligence, errors of
judgment, or innocent mistake, do not constitute misconduct.

Furthermore, some cases were taken into consideration to decide whether there was any
professional misconduct or not, namely, Kazi Abdul Khaleque v. Haji A.F. Rahman, reported in
1983 BCR (AD) 397, Kennedy v. Council of Incorporated Law Institute of New South Wales,
(1939) 13ALJ 563, , , Esrarul Haq v. Amir Hossain (Md.) 66 DLR (AD). These cases were taken
into account to settle that professional misconduct is there only when any instance of breach of
discipline that is improper behavior, intentional wrong doing or deliberate Violation of a rule of
standard of behavior is proved by any lawyer. The term misconduct cannot be defined
precisely. It may mean delinquency in its performance of duty and its effect indiscipline and the
nature of duty. It may also mean willful improper behavior by any lawyer.

But all of these were absent from the act of the petitioner as all he did was a mere conventional
practice which he committed with bonafide intention. And his hurried issuance of certificate
was to defeat the harassment of the judgment.
But the court stated that the attitude of the Bar Council was plain disappointing. Bar Council
being a statutory autonomous body consisting about 45 thousand lawyers has failed to keep its
dignity, weight and legal status in handling a complainant as complainant. It completely ignored
its duty towards a reputed lawyer and failed in complying with due process. The High Court
Division also stated Election Commission as being ignorant to the general procedures and
practice of courts and law being a Constitutional body of high importance.

In fine, the High Court Division did not find any misconduct from the petitioner. Instead the
court found ignorance in the acts of the Bar Council and Election Commission.

Principle:

“Misconduct” in the case of professional sphere on account of a lawyer should be ascertained

by the fact that whether there was clear, willful or malafide act of misconduct or not and
whether gross violation of ethics was present, and so Bangladesh Bar Council must be careful in
exposing any of its member to the tribunal for professional misconduct.

Conclusion:

This case is very much noteworthy because it clearly states the ambit of professional
misconduct of a lawyer, especially that of a reputed lawyer. Also, this case makes it clear that,
professional misconduct does not mean any vague bonafide act, rather a clear malafide act.