Professional Documents
Culture Documents
ABHAS JAISWAL
B.A.LL.B (HONS.)
ROLL NO. - 03
FACULTY OF LAW,
UNIVERSITY OF ALLAHABAD
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Professional Ethics
ACKNOWLDGEMENT
Writing a project is not an easy task it requires hard labour, deep study and thorough
knowledge of the topic given. Thus who helped in making this project successful I would like
to express my deep feeling of gratitude towards them for being a hand of support for me
always.
First of all I would like to thank my subject teacher Mr. Rajiv Sharma who has given me
opportunity to make this project and enlightened me with the intricacy of the subject.
Secondly I would show my gratitude towards my friends who guided me all through making
this project successful. Lastly I would thank my family for being a support in each and every
thing required for completing this project.
Abhas Jaiswal
X semester
Section – A
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INDEX
2. Introduction 4
5. Bibliography 14
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INTRODUCTION
Advocacy is a noble profession and an advocate is the most accountable, privileged and
erudite person of the society and his act are role model for the society, which are necessary to
be regulated. Professional misconduct is the behaviour outside the bounds of what is
considered acceptable or worthy of its membership by the governing body of a profession.
Professional misconduct refers to disgraceful or dishonourable conduct not befitting an
advocate. Chapter V of the Advocate Act, 1961, deals with the conduct of Advocates. It
describes provisions relating to punishment for professional and other misconducts. Section
35(1) of the Advocate Act, 1961, says, 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 it disciplinary committee. Generally
legal profession is not a trade or business, it’s a gracious, noble, and decontaminated
profession of the society. Members belonging to this profession should not encourage
deceitfulness and corruption, but they have to strive to secure justice to their clients. The
credibility and reputation of the profession depends upon the manner in which the members
of the profession conduct themselves. It’s a symbol of healthy relationship between Bar and
Bench.
The Advocates Act, 1961 as well Indian Bar Council are silent in providing 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 on the
profession comes under a clout on account of acts of omission and commission by any
member of the profession.
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Profession is a vocation requiring some significant body of knowledge that is applied with
high degree of consistency in the service of some relevant segment of society, by Hodge and
Johnson. Occupation especially one requiring advanced education and special training by A.
S.Hornby. It is different from other types of jobs, in the sense that it requires skills and these
skills will be improved with experience. The attributes of a profession as laid down by Dalton
E. McFarland are;
1) The existence of a body of specialized knowledge or techniques
2) Formalized method of acquiring training and experience
3) The establishment of representative organization with professionalism as its goal.
4) The formation of ethical codes for the guidance of conduct.
5) The charging of fees based on services but with due regards for the priority of service over
the desire for monetary rewards.
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that the term misconduct may involve moral turpitude, it must be improper or wrong
behaviour, unlawful behaviour, willful in character, a forbidden act, a transgression of
established and definite rule of action or code of conduct, but not mere error of judgement,
carelessness or negligence in performance of duty.
The Supreme Court has, in some of its decisions, elucidated on the concept of ‘misconduct’,
and its application. In Sambhu Ram Yadav v. Hanuman Das Khatry, a complaint was
filed by the appellant against an advocate to the Bar Council of Rajasthan, that while
appearing in a suit as a counsel, he wrote a letter stating that the concerned judge, before
whom the suit is pending accepts bribes, and asked for Rs. 10,000 to bribe and influence the
judge to obtain a favourable order. The Disciplinary Committee, holding that the advocate
was guilty if “misconduct”, stated that such an act made the advocate “totally unfit to be a
lawyer.” The Supreme Court, upholding the finding of the Rajasthan Bar Council held that
the legal profession is not a trade or business. Members belonging to the profession have a
particular duty to uphold the integrity of the profession and to discourage corruption in order
to ensure that justice is secured in a legal manner. The act of the advocate was misconduct of
the highest degree as it not only obstructed the administration of justice, but eroded the
reputation of the profession in the opinion of the public.
In another case, Noratanman Courasia v. M. R. Murali the Supreme Court explored the
amplitude and extent of the words “professional misconduct” in Section 35 of the Advocates
Act. The facts of the case involved an advocate (appearing as a litigant in the capacity of the
respondent, and not an advocate in a rent control proceeding) assaulted and kicked the
complainant and asked him to refrain from proceeding with the case. The main issue in this
case was whether the act of the advocate amounted to misconduct, the action against which
could be initiated in the Bar Council, even though he was not acting in the capacity of an
advocate. It was upheld by the Supreme Court that a lawyer is obliged to observe the norms
of behaviour expected of him, which make him worthy of the confidence of the community in
him as an officer of the Court.
Therefore, inspite of the fact that he was not acting in his capacity as an advocate, his
behaviour was unfit for an advocate, and the Bar Council was justified in proceeding with the
disciplinary proceedings against him.
It may be noted that in arriving at the decision in the case, the Supreme Court carried out an
over-view of the jurisprudence of the courts in the area of misconduct of advocates. It
reiterated that the term “misconduct” is incapable of a precise definition. Broadly speaking, it
envisages any instance of breach of discipline. It means improper behaviour, intentional
wrongdoing or deliberate violation of a rule of standard of behaviour. The term may also
include wrongful intention, which is not a mere error of judgment. Therefore, “misconduct”,
though incapable of a precise definition, acquires its connotation from the context, the
delinquency in its performance and its effect on the discipline and the nature of duty.
In N.G. Dastane v. Shrikant S. Shind, where the advocate of one of the parties was asking
for continuous adjournments to the immense inconvenience of the opposite party, it was held
by the Supreme Court that seeking adjournments for postponing the examination of witnesses
who were present without making other arrangements for examining such witnesses is a
dereliction of the duty that an advocate owed to the Court, amounting to misconduct.
Ultimately, as it has been upheld and reiterated that “misconduct” would cover any activity or
conduct which his professional brethren of good repute and competency would reasonably
regard as disgraceful or dishonourable. It may be noted that the scope of “misconduct” is not
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restricted by technical interpretations of rules of conduct. This was proven conclusively in the
case of Bar Council of Maharashtra v. M.V. Dahbolkar.
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 behavior 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 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.
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However no such order of the review of the disciplinary committee of a State Bar
Council shall have effect, unless it has been approved by the Bar Council of India.
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The judiciary is the guardian of the rule of law. Hence judiciary is not the third pillar but the
central pillar of the democratic state. Misconduct: it is a sufficiently wide expression: it is not
necessary that it should involve moral turpitude. Any conduct which in any way renders a
man unfit for the exercise of his profession or is likely to hamper or embarrass the
administration of justice maybe considered to be misconduct calling for disciplinary action. It
cannot be said that an advocate can never be punished for professional misconduct committed
by him in his personal capacity.
It was laid down that the Supreme Court can take cognizance of the contempt of High Court.
Being the Court of record the Supreme Court has the power to punish for the contempt of the
courts subordinate to it. Thus, the Supreme Court is fully competent to take cognizance of the
contempt of the High Courts or courts subordinate to it. It was also claimed that the Judge
before whom the contempt has been committed should be excluded. This claim was not
sustainable in the view of the Court. It observed further that its contempt jurisdiction under
Article 129 of the Constitution cannot be restricted or taken away by a statute, be it the
Advocates Act, 1961 or the Contempt of Courts Act, 1971. The Court has also observed that
the contempt jurisdiction of the superior Court's is not based on the statutory provisions but it
is inherent jurisdiction available to them on account of being a court of record. As regards the
procedure to be followed the Court has observed that the Courts of record can deal with
summarily with all types of contempt. With regards to Article 142 of the Constitution the
Court observed that the jurisdiction and powers of the Supreme Court which are
supplementary in nature and are provided to do complete justice in any manner, are
independent of the jurisdiction and powers of the Supreme Court under Article 129 which
cannot be trammeled in any manner by any statutory provision including any provisions of
the Advocates Act, 1961 or the Contempt of Courts Act, 1971.
The Advocates Act, 1961 has nothing to do with the contempt jurisdiction of the Court, and
the Contempt of Courts Act, 1971 being a statute cannot denude the, restrict or limit the
powers of this Court to take action for contempt under Article 129.
The Supreme Court also held that it being appellate authority under Section 38 of the
Advocates Act, 1961 can impose punishment mentioned in Section 35 of the said Act. Thus,
the Supreme Court may suspend or cancel the license of an advocate to practice his
profession for contempt of Court. It finally said that the threat of immediate punishment is the
most effective deterrent against the misconduct. They emphasized that the time factor was
crucial and dragging the contempt proceedings means a lengthy interruption to the main
proceedings which paralyzed the Court for a long time. This case was overruled by Supreme
Court Bar Association v. Union of India and Another.
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# although the powers conferred on this Court by Article 142, though very wide in their
aptitude, can be exercised only to "do complete justice in any case or cause pending before it
"and since the issue of 'professional misconduct' is not the subject matter of "any cause"
pending before this court while dealing with a case of contempt of court, it could not make
any order either under Article 142 or 129 to suspend the license of an advocate contemner,
for which punishment, statutory provisions otherwise exist.
# the Supreme Court can neither create a "jurisdiction" nor create a "punishment" not
otherwise permitted by law and that since the power to punish an advocate (for "professional
misconduct") by suspending his license vests exclusively in a statutory body constituted
under the Advocates Act, this Court cannot assume that jurisdiction under Article 142 or 129
or even under Section 38 of the Advocates Act, 1961.The bench came to the conclusion that
the Supreme Court under Article 129 and the High Court under Article 215 of the Indian
Constitution declaring them court of records has the power to punish the for contempt of
itself. The Court observed that Parliament is competent to make law in relation to Contempt
of Court. After analyzing Article 246 and entry 77 of List I of the VIIth Schedule and entry
14 of List III of the said schedule it is evident that the legislature can make a law regarding
the same, but cannot take away contempt jurisdiction from the Courts which flows from the
Courts being deemed as Courts of record which embodies the power to punish for the
contempt of itself.
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With reference to Article 142 of the Constitution of India the Court observed that when this
court takes cognizance of a matter of contempt of Court by an advocate, there is no case,
cause or matter before it regarding his professional misconduct even though in a given case,
the contempt committed by an advocate may also amount to an abuse of the privilege granted
to an advocate by virtue of the license to practice law. No issue relating to his suspension
from practice is the subject matter of the case.
The Court opined that power to punish in matters of contempt of Court, though quite wide, is
yet limited and cannot be expanded to include the power to determine whether the advocate is
also guilty of professional misconduct in a summary manner giving a go by to the procedure
prescribed under the Advocates Act, 1961.
The power to do complete justice, in a way is a corrective power which gives preference to
equity over law but it cannot be used to deprive a professional lawyer of the due process of
law, contained in the Advocates Act, 1961, while dealing with a case of contempt of Court.
From a reading of Article 142 it is clear the statutory provisions cannot be ignored or taken
away or assumed by the Supreme Court. The Advocates Act, 1961, empowers the Bar
Council to take action against the advocate for professional misconduct. The Bar Council is
empowered under Section 35 of the Advocates Act, 1961 to punish advocates for professional
misconduct. The act contains a detailed and complete mechanism for suspending or revoking
the license of an advocate. A disciplinary committee hears the case of the advocate concerned
and then order any of the punishments listed in Section 35(3) (ad). If the advocate is guilty of
contempt of Court as well as professional misconduct the Court must punish him for the
contempt, whereas refer the professional misconduct to the Bar. The Bar will then initiate
proceedings against, this provides the advocate with right to be heard and appropriate action
is taken by the disciplinary committee. After such proceedings if the advocate is aggrieved he
may approach the Supreme Court. Section 38 of the Advocates Act, 1961 provides for an
appeal to the Supreme Court. This Section confers upon the Court appellate jurisdiction. If
once the matter has been reported to the Bar and it does not take any action, the Court may
take up the matter. This Section can in no way be construed to give original jurisdiction to the
Court.
The Court opined that the Supreme Court makes the statutory bodies and other organs of the
State perform their duties in accordance with law, its role is unexceptionable but it is not
permissible for the Supreme Court to take over the role of the bodies and other organs of the
State and perform their functions. There was an inherent fallacy in the case of Vinay Mishra,
it was said once the matter is before the court it can pass any order or direction. But the
matter is that of contempt of Court not of professional misconduct. The Court has jurisdiction
on the matter of contempt but professional misconduct vests with the Bar. As the Bar can
suspend an advocate only after giving him an opportunity to represent himself which is the
requirement of due process of law, after the case of Maneka Gandhi v. Union of India. The
Court in Vinay's case vested with itself with the jurisdiction that it never had.
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BIBLIOGRAPHY
Websites:-
1. www.scribd.com
2. www.wikipedia.com
3. http://www.legalserviceindia.com/articles/sc_t.htm
4. http://www.legalservicesindia.com/article/print.php?art_id=1621
5. www.google.com
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