ALIGARH MUSLIM UNIVERSITY

Centre Jangipur MURSHIDABAD

SESSION: 2022-23
MID-TERM

TOPIC:- explaining the professional misconduct in legal profession

Bachelor of law (LL.B) SEMESTER: X th

SUBJECT: PROFESSIONAL ETHICS

Student Name: MOHAMMAD.ARHAM

Student roll number: 17BALLB61

Supervisor :
Dr. Md. junaid
ASSISTANT PROFESSOR
DEPARTMENT OF LAW ( A.M.U, MURSHIDABAD)
 CERTIFICATE

This is certify that MOHAMMAD ARHAM, A student of

B.A.LL.B.(HONS.) Roll No-17BALLB-61, ENROLLMENT
NO GH9286 Aligarh Muslim University Centre Murshidabad
has successfully completed the mid-term project on the topic
explaining the professional misconduct in legal profession under the
guidance of Assistant Professor Dr. Md. JUNAID during
the year 2022-23.

Teacher’s sign
 ACKNOWLEDGEMENT

I express my deep sense of gratitude to my respected teacher

Assistant Professor Dr. Md. JUNAID
for his valuable help and guidance. I am thankful to him for
the encouragement given me in completing mid-term project.I
am also thankful to God for cooperation and help.

Lastly, I would like to express my deep apperception towards

my classmates, sibling and my ineptness’ to my parents to
provide me the moral support.

MOHAMMAD ARHAM
ROLL NO-17BALLB-61
ENROLLMENT NO. GH9286
 Table of Contents

 INTRODUCTION

 DEFINITIONS OF MISCONDUCT

 ROLE OF BAR COUNCIL OF INDIA

 PROVISION FOR THE DISCIPLINARY PROCEEDING AGAINST

ADVOCATE UNDER ADVOCATES ACT AND BAR COUNCIL OF INDIA
RULES

 BAR COUNCIL OF INDIA RULES

 EXAMPLE OF PROFESSIONAL MISCONDUCT THROUGH CASE LAWS

 DETERMINATION TO THE QUANTUM OF PUNISHMENT

 CONCLUSION
 REFERENCES
INTRODUCTION

Lawyering is such a graceful and honourable profession that common citizens expects any
advocate to be serious in his/her work. The law expects that Nothing should be done by any
member of the legal fraternity which might tend to lessen in any degree the confidence of the
public in the fidelity, honesty and integrity of the profession.1

With a view to maintain professional ethics among advocates, law provides punishment for
those advocates who breach the common rule of professional ethics. So when a person from
legal profession especially advocates do any improper conduct willfully, that is called
“professional misconduct.” It disqualifies that advocate to continue with legal profession.

DEFINITIONS OF MISCONDUCT
Misconduct has not been defined in the Advocates Act, 1961. But P. Ramanatha Aiyar’s
the Law Lexicon, Reprint Edition 1987 at p.821 `misconduct’ defines thus2:-

“Misconduct is a violation of definite law; carelessness or abuse of discretion under an

indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and
is necessarily indefinite.

Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by

which the rights of a party have been affected.”

The expression professional misconduct was attempted to be defined by Darling J. in A

Solicitor ex p the Law Society, in re [1912 (1) KB 302)3 in the following terms:

If it is shown that an advocate in the pursuit of his profession has done something with regard
to it which would be reasonably regarded as disgraceful or dis-honourable by his professional
brethren of good repute and competency, then it is open to say that he is guilty of professional
misconduct.

In RD Saxena vs. Balram Prasad Sharma [2000 (7) SCC 264] this Court has quoted the
above definition rendered by Darling J., which was subsequently approved by the Privy
Council in George Frier Grahame vs. Attorney General (AIR 1936 PC 224) and then
observed thus:

Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section uses the
expression misconduct, professional or otherwise. The word misconduct is a relative term. It
has to be considered with reference to the subject matter and the context wherein such term
occurs. It literally means wrong conduct or improper conduct.4

1
V.C Ranga Durai v. D Gopalan AIR 1979 SC 281

2
State of Punjab v. Ram Singh  AIR 1992 SC 2188

3
In Re A Solicior; ex parte Law Society‘ reported in 1912-1 K. B. 302 (G)

4
N.G Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028
Thus, misconduct may involve-5

 moral turpitude, it must be improper or wrong behavior;

 unlawful behavior, willful in character;
 forbidden act,
 a transgression of established and definite rule of action or
code of conduct but not
mere error of judgment, carelessness or negligence in performance of the duty;

Its ambit has to be construed with reference to the subject matter and the context.6

ROLE OF BAR COUNCIL OF INDIA

Advocates act, 1973 gives the wide power to bar council of India to deal with the matter of
professional conduct.

The functions of the Bar Council of India are inter alia to lay down standards of professional
conduct and etiquette, to lay down the procedure to be followed by its disciplinary committee
and the disciplinary committee of State Bar Councils, to safeguard the rights, privileges and
interests of advocates and to exercise general supervision and control over State Bar Councils
Disciplinary committees are constituted by each Bar Council.7

PROVISION FOR THE DISCIPLINARY PROCEEDING AGAINST ADVOCATE

UNDER ADVOCATES ACT AND BAR COUNCIL OF INDIA RULES

PROVISIONS UNDER ADVOCATES ACT, 1961

Procedure of punishment, inquiry, appeal, proceeding for professional misconduct in legal
profession is provided in chapter V of advocates Act, 1961. Some of main provisions are
hereunder-

 PROCEEDING TO HEAR THE COMPLAINT- (SECTION 35, 36B, 41,

42)-  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.

The expression “reason to believe” is employed in section 35 of the Act only for the limited
purpose of using it as a filter for excluding frivolous complainants against advocate.8

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 period as it may deem fit; 

5
Ibid.
6
Ibid
7
Bar Councll Of Maharashtra vs M. V. Dabholkar Etc.1975 AIR 2092, 1976 SCR (1) 306
8
Dastane v. shirikant, 2001 (4) S.C.T. 723
  remove the name of the advocate from the State roll of advocates.

When an order is made reprimanding or suspending an advocate, a record of the punishment

shall be entered against his name-

 in the case of an advocate whose name is entered in a State roll, in that roll;
 and where any order is made removing an advocate from practice, his name shall be
struck off the State roll; 
 Where any advocate is suspended or removed from practice, the certificate granted to
him in respect of his enrolment shall be recalled. (section 41)

In each case the proceedings shall be concluded within a period of one year from the date of
the receipt of the complaint or the date of initiation of the proceedings at the instance of the
State Bar Council. (section 36B)

Where an advocate is suspended from practice, he shall, during the period of suspension, be
debarred from practicing in any court or before any authority or person in India.

Powers of disciplinary committee (section 42)- The disciplinary committee of a Bar

Council shall have the same powers as are vested in a civil court under the Code of Civil
Procedure, 1908, in respect of the following matters, namely: ―

 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 commissions for the examination of witnesses or documents; 
 any other matter which may be prescribed:                                                            

However, no such disciplinary committee shall have the right to require the attendance of—

 any presiding officer of a court except with the previous sanction of the High Court to
which such court is subordinate; 
 any officer of a revenue court except with the previous sanction of the State
Government. 

 APPEAL (SECTION 37, 38)- An advocate aggrieved by the decision of state bar
council, may prefer an appeal to Bar council of India (section 37) within sixty days
of the date of the communication of the order to him.

And If any advocate is also not satisfied with the decision of bar council of India, s/he can
appeal in Supreme court (section 38) against that decision, within sixty days of the date of the
communication of the order to him again.

 REVIEW (SEC 44)- The disciplinary committee of a Bar Council may review any
order within sixty days of the date of that order, passed by it. However, no such
order of review of the disciplinary committee of a State Bar Council shall have
effect unless it has been approved by the Bar Council of India.
BAR COUNCIL OF INDIA RULES
Section 49 of the advocates act 1961 empowers the Bar Council of India to frame rules
regulating standards of professional conduct. Thus, “Bar Council of India rules” were
enacted.

 Chapter X of the rules, laid down the complete procedure for the review of
application, made under section 48AA of advocates act.

 Part IV is related to the “rules governing advocates”. And Chapter II of this part laid
down the rules on the “standards of professional conduct and etiquette”, which are
in brief as following.

 SECTION 1- DUTY TO THE COURTS-

 An Advocate shall, before a Court, conduct himself with dignity and self-respect.
 An Advocate shall maintain towards the Courts a respectful attitude, bearing in mind
that the dignity of the judicial office is essential for the survival of a free
community.
 An Advocate shall not influence the decision of a Court by any illegal or improper
means. Private communications with a judge relating to a pending case are
forbidden.
 An Advocate shall use his best efforts to restrain and prevent his client from resorting
to sharp or unfair practices or from doing anything in relation to the Court,
opposing counsel or parties which the Advocate himself ought not to do.
 An Advocate shall appear in Court at all times only in the prescribed dress, and his
appearance shall always be presentable.
 An Advocate shall not wear bands or gown in public places other than in Courts
except on such ceremonial occasions and at such places as the Bar Council of India
or the Court may prescribe.
 An Advocate shall not appear in or before any Court or Tribunal or any other
authority for or against an Organisation or an institution, society or corporation, if
he is a member of the Executive Committee of such Organisation or institution or
society or corporation.
 An Advocate should not act or plead in any matter in which he is himself pecuniarily
interested.

 SECTION II – DUTY TO THE CLIENT-

 An Advocate shall not ordinarily withdraw from engagements once accepted, without
sufficient cause and unless reasonable and sufficient notice is given to the client.
 An Advocate should not accept a brief or appear in a case in which he has reason to
believe that he will be a witness and if being engaged in a case, it becomes apparent
that he is a witness on a material question of fact, he should not continue to appear
as an Advocate if he can retire without jeopardising his client’s interests.
 It shall be the duty of an Advocate fearlessly to defend a person accused of a crime
regardless of his personal opinion as to the guilt of the accused, bearing in mind
that his loyalty is to the law which requires that no man should be convicted
without adequate evidence.
  An Advocate shall not buy or traffic in or stipulate for or agree to receive any share or
interest in any actionable claim. Nothing in this Rule shall apply to stock, shares
and debentures or Government securities, or to any instruments, which are, for the
time being, by law or custom negotiable, or to any mercantile document of title to
goods.
 An Advocate shall not do any thing whereby he abuses or takes advantage of the
confidence reposed in him by his client.
 Where the fee has been left unsettled,the Advocate shall be entitled to deduct, out of
any moneys of the client remaining in his hands, at the termination of the
proceeding for which he had been engaged.
 An Advocate who has, at any time, advised in connection with the institution of a suit,
appeal or other matter or has drawn pleadings, or acted for a party shall not act,
appear or plead for the opposite party.

 SECTION III – DUTY TO OPPONENT

 An Advocate shall not in any way communicate or negotiate upon the subject matter
of controversy with any party represented by an Advocate except through that
Advocate.
 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.

 SECTION IV – DUTY TO COLLEAGUES

 An Advocate shall not solicit work or advertise, either directly or indirectly, whether
by circulars, advertisements, touts, personal communications, interviews not
warranted by personal relations, furnishing or inspiring newspaper comments or
producing his photograph to be published in connection with cases in which he has
been engaged or concerned. His sign-board or name plate should be of a reasonable
size. The sign-board or name-plate or stationery should not indicate that he is or has
been President or Member of a Bar Council or of any Association or that he has
been associated with any person or Organisation or with any particular cause or
matter or that he specialises in any particular type of work or that he has been a
Judge or an Advocate General.
 An Advocate shall not permit his professional services or his name to be used in aid
of, or to make possible, the unauthorised practice of law by any agency.
 An Advocate shall not enter appearance in any case in which there is already a
vakalatnama or memo of appearance filed by an Advocate engaged for a party
except with his consent.

 SECTION VI – DUTY TO RENDER LEGAL AID

Every Advocate shall in the practice of the profession of law bear in mind that any one
genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it
fully or adequately and that within the limits of an Advocate’s economic condition, free legal
assistance to the indigent and oppressed is one of the highest obligations an Advocate owes to
society.

 SECTION VII – RESTRICTION ON THEIR EMPLOYMENTS

 An Advocate shall not personally engage in any business; but he may be a sleeping
partner in a firm doing business provided that, in the opinion of the appropriate
 State Bar Council, the nature of the business is not inconsistent with the dignity of
the profession.
 An Advocate may be Director or Chairman of the Board of Directors of a company
with or without any ordinary sitting fee, provided none of his duties are of an
executive character. An Advocate shall not be a Managing Director or a Secretary
of any company.
 An Advocate shall not be a full-time salaried employee of any person, government,
firm, corporation or concern, so long as he continues to practise, and shall, on
taking up any such employment, intimate the fact to the Bar Council on whose roll
his name appears, and shall thereupon cease to practice as an Advocate so long as
he continues in such employment.
 An Advocate who has inherited, or succeeded by survivorship to, a family business
may continue it, but may not personally participate in the management thereof.
  An Advocate may review Parliamentary Bills for a remuneration, edit legal text
books at a salary, do press-vetting for newspapers, 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 subjects, both legal and non-legal.

 Complete procedure for the disciplinary proceeding against advocate, is mentioned in

Chapter VII of Rules. Chapter I is related to Complaints against advocates and
procedure to be followed by disciplinary committees of the state bar council and the
bar council of India. And chapter II is related to the review of the decision.

EXAMPLE OF PROFESSIONAL MISCONDUCT THROUGH CASE LAWS

 Writing a letter to his client to send money to bribe the Judge is a serious misconduct.

In Shambhu Ram Yadav vs Hanum Das Khatry9, while giving above decision, the
supreme court said that The disciplinary bodies are guardians of the due administration of
justice. They have requisite power and rather a duty while supervising the conduct of the
members of the legal profession, to inflict appropriate penalty when members are found to be
guilty of misconduct. It is the duty of the bar councils to ensure that lawyers adhere to the
required standards and on failure, to take appropriate action against them.

 It is not in accordance with professional etiquette for one advocate to hand over his
brief to another to take his place at a hearing (either for the whole or part of the
hearing), and conduct the case as if the latter had himself been briefed, unless the
client consents to this course being taken.10

 Advocate abusing the process of court is guilty of misconduct. When witnesses are
present in Court for examination the advocate concerned has a duty to see that their
examination is conducted. Seeking adjournments for postponing the examination of
witnesses who are present in Court even without making other arrangements for
examining such witnesses is a dereliction of advocates duty to the Court as that
would cause much harassment and hardship to the witnesses. Such dereliction if
repeated would amount to misconduct of the advocate concerned.

9
AIR 2001 SC 2509
10
V.C Ranga Durai v. D Gopalan  AIR 1979 SC 281
Legal profession must be purified from such abuses of the Court procedures. Tactics of
filibuster11, if adopted by an advocate, is also professional misconduct.12

 An advocate is a guilty of professional misconduct if he did not inform the

complainant about the progress of the case nor called upon the complainant to
furnish any copies of any of the proceedings.13

 It is amounts serious professional misconduct if the advocate and his/her associates

misappropriates the money paid to them for court fee, miscellaneous expenses and
the professional fees, also if they don’t return the documents and other papers
handed over to them for filing the suit and they don’t inform the status of case even
after asking again and again.14

 Bar Council of Maharashtra v. M.V. Dahbolkar15 is a very interesting case. 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. This approach of the Bar council of India was heavily
reprimanded by the Supreme Court.

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.”

 In Hikmat Ali Khan V. Ishwar Prasad Arya [1997 (3) SC 131] the concerned advocate
assaulted his opponents with a knife. He was prosecuted and found guilty of
commission of an offence under Section 307 of the IPC. In the aforementioned
situation, it was held that the advocate deserves the extraordinary punishment of
removal of his name from the state rolls of advocates.

DETERMINATION TO THE QUANTUM OF PUNISHMENT

A professional or other misconduct committed by a member of the profession should
ordinarily be judged qua profession. To determine the quantum of punishment which may be
imposed on an advocate, the test of proportionality shall be applied which would also depend
upon the nature of the acts complained of. No universal rule thus can be laid down as regard
initiation of a proceeding for misconduct of a member of the profession.16

11
 A filibuster is a parliamentary procedure where one or more members of a legislature debate over a
proposed piece of legislation to delay or entirely prevent a decision being made on the proposal.
12
 N.G Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028, see also-  State of UP vs. Shambhu
Nath singh [JT 2001 (4) SC 319]
13
Mana Mohamed Ismail vs V. Balarathnam; AIR 1965 Kant 28
14
D.S Dalal v. State Bank of India  AIR 1993 SC 1608, see also
15
1975 AIR 2092
16
Noratanmal Chouraria vs M.R. Murli & Anr 2004 AIR 2440
CONCLUSION
There is a saying that, “God save from the white coat (doctors) and black coat (lawyers).”
Because if anyone falls in the circle of them, s/he will not be able to remove himself/herself
easily without spending a good amount of money.

But situation can be worst if lawyers will cheat the people with extracting amount from them.
It will lessen the nobility and fidelity of the lawyers in the eyes of the people. There are a
number of people who have no idea that they can report against the advocate if he did
something very wrong against them. But a common person who already is stuck in a case
how can we expect him that he will report against the advocate so most the time, only literate
person come against the misconducts of lawyers.

Law is a noble profession, true; but it is also an elitist profession. When the constitution
under Article 19 enables professional expertise to enjoy a privilege and the Advocates
Act confers a monopoly, the goal is not assured income but commitment to the people whose
hunger, privation and hamstrung human rights need the advocacy of the profession to change
the existing order into a Human Tomorrow. This desideratum gives the clue to the direction
of the penance of a devient geared to correction. Serve the people free and expiate your sin, is
the hint

REFERENCES-

Statutes:-

 Advocates Act, 1961

 Bar Council of India Rules

Cases:-

 V.C Ranga Durai v. D Gopalan AIR 1979 SC 281

 State of Punjab v. Ram Singh AIR 1992 SC 2188
 N.G Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028
 Bar Councll Of Maharashtra vs M. V. Dabholkar Etc.1975 AIR 2092, 1976 SCR (1)
306
 Shambhu Ram Yadav vs Hanum Das Khatry, AIR 2001 SC 2509
 State of UP vs. Shambhu Nath singh [JT 2001 (4) SC 319]
 Mana Mohamed Ismail vs V. Balarathnam; AIR 1965 Kant 28
 Hikmat Ali Khan V. Ishwar Prasad Arya [1997 (3) SC 131]
 D.S Dalal v. State Bank of India AIR 1993 SC 1608,
 L.C. Goyal vs Mrs. Suresh Joshi & Ors; AIR 1999 SC 2222
 Noratanmal Chouraria vs M.R. Murli & Anr 2004 AIR 2440