PROFESSIONAL MISCONDUCT BY

ADVOCATES IN INDIA – A
CRITICAL ANALYSIS
Authored By: Karishma Taneja

ABSTRACT

In the legal profession, dishonorable or disgraceful behaviour by an advocate is generally

referred to as professional misconduct. It can be characterized as conduct that is not deemed
deserving of or acceptable by the person in charge of a profession. Through this paper, the
author seeks to give a general overview of the subject in relation to the problem of
"Professional Misconduct" in the legal profession.

The forms and occurrences of professional conduct, advocate responsibilities, the required
code of conduct for advocates, and significant court rulings on the subject are all covered in
the paper. The Act's code of conduct for legal professionals is also discussed, along with
situations that qualify as professional misconduct under the Advocates Act of 1961. The
paper examines the contribution made by several important rulings to the understanding and
creation of laws and Acts pertaining to the problem of professional misconduct.

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INTRODUCTION

The term "professional misconduct" often refers to unethical behaviour. It suggests, in a legal
sense, that those working in the profession did an act on purpose and with bad intentions. It
suggests that any activity or activities of an advocate that violate professional ethics are done
for his own self-interest. A behaviour that conflicts with his profession and disqualifies him
from practicing it is considered "professional misconduct." In other words, a behaviour that
barring an advocate from practicing law.

Although it would be impossible to list everything that would constitute misconduct and
indiscipline, the Advocates Act of 1966 did not define the term. However, the definition of
misconduct is broad enough to include any wrongdoing, whether it is done or omitted to be
done intentionally or unintentionally.

Dictionary meaning of Misconduct has been defined as a violation of a specific, well-known

rule of behaviour, a banned act, a failure to perform a duty, illegal behaviour, or improper or
inaccurate behaviour.

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ADVOCATES ACT, 1961

The Conduct of Advocates is covered in Chapter V of the Advocates Act of 1961.

Section 35 – Punishment of Advocates for Misconduct

The State Bar Council shall refer the case for disposal to its disciplinary committee on the
receipt of a complaint of any advocate on its role, if it has reason to believe, that the advocate
has been guilty of professional other misconduct.

A date for the hearing of the case shall be fixed by the Disciplinary Committee of the State
Bar Council and a it shall cause a notice thereof to be given to the Advocate concerned and to
the Advocate-General of the State.

After giving an opportunity of being heard to the Advocate concerned and the Advocate
General, the Disciplinary Committee of State Bar Council shall make any of the following
orders, being:
 Dismiss the complaint.
 Reprimand the Advocate.
 Suspend the advocate's right to practise for as long it considers fit.
 Removal of the advocate's name from the state's roll list of advocates.

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

Section 36B – Disposal of Disciplinary Proceedings

Any complaint received by the Disciplinary Committee of the State Bar Council, under
section 35, hall be disposed of expeditiously and in each case the proceedings shall be
concluded within a period of one year, From the date of receipt of the complaint or the date of
initiation of the proceedings, failing with such proceedings shall stand transferred to the Bar

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Council of India, which may dispose of the same as if it were proceedings withdrawn for
inquiry.

Section 37 – Appeal Preferred to the Bar Council of India

An appeal may be preferred to the Bar Council of India, within 60 days of the date of
communication of the order, by any anyone who feels wronged by a State Bar Council order
delivered under Section 35 by the disciplinary committee.

Every such appeal shall be heard by the disciplinary committee of the Bar Council of India,
which may pass such order thereon as it deems fit.

Section 38 – Appeal Preferred to the Supreme Court

An appeal may be preferred to Supreme Court of India, within 60 days of the date of
communication of the order, by any aggrieved person by an order of the disciplinary
committee of the Bar Council of India, made under Section 36 or Section 37, and the
Supreme Court may pass such order thereon as it deems fit.

Section 41 – Alteration in roll of Advocates

A record of the punishment must be made against an advocate's name if an order under this
chapter reprimands or suspends him.

 The name of an advocate who has been ordered to stop practising must be removed
from the State Roll.
 The certificate issued to any advocate in relation to his enrolment under Section 22
shall be recalled in the case that he is suspended or expelled from practise.

Section 44 – Review of Orders by Disciplinary Committee

The Disciplinary Committee of Bar Council may on its own motion or otherwise, review any
order passed by it, within 60 days of the date of that order.

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Provided that such order of review of the disciplinary committee shall be approved by the
Bar Council of India to have effect.

DUTIES OF AN ADVOCATE

In addition to being experts in their fields, advocates serve as officers of the courts and are
essential to the administration of justice.

The set of guidelines that govern their professional conduct therefore result from the
obligation they have to the court, their client, their opponents, and other advocates.

In accordance with Section 49(1)(c) of the Advocates Act of 1961, Rules on the professional
standards that an advocate must uphold have been established under Chapter II, Part VI of
the Bar Council of India Rules.

DUTIES TOWARDS COURT – Rule 1 to 10

1. An advocate during the presentation of his case shall conduct himself with dignity and
self-respect.
2. An advocate shall maintain a respectful attitude towards the court, bearing in mind the
dignity of the judicial officer.
3. An advocate shall not influence the decision of the court by any illegal or improper
means.
4. An advocate shall restrain and prevent his client from restoring to unfair practices.
5. An advocate shall appear only in the prescribed dress.
6. An advocate shall not to appear, act, plead, practice in any way before a court,
tribunal, authority if the sole or any member is related to the advocate.
7. An advocate shall not wear bands or gowns in public places.
8. An advocate shall not appear for or against any organization, if he is a member of the
Executive Committee of the organization.
9. An advocate shall not act or plead in a case in which he himself is pecuniarily
interested.
10. An advocate shall not stand as a surety for his client.

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DUTIES TOWARDS CLIENT – Rule 11 to 33

11. An advocate is bound to accept the brief at a fee consistent with his standing at the
bar.
12. An advocate shall not withdraw without reason from engagement of a client.
13. An advocate shall not accept brief if he has reason to believe that advocate himself
can be a witness in a case.
14. An advocate shall make full and frank disclosure's to his client.
15. An advocate shall fearlessly uphold the interest of his client by fair and honorable
means.
16. An advocate appearing for prosecution of a criminal trial, shall appear in such a
manner that the prosecution does not lead to conviction of an innocent.
17. An advocate shall not breach the obligations imposed under Section 126 of the
Indian Evidence Act, 1872.
18. An advocate shall not be a participate in fomenting of litigation
19. An advocate shall not act on instructions of anyone except his client and his
authorised agent.
20. An advocate shall not stipulate the fee.
21. An advocate shall not buy or have interest in any actionable claim.
22. An advocate shall not bid or purchase the property executed.
23. An advocate shall not adjust the fee for his personal liability.
24. An advocate shall not abuse the confidence of his client.
25. An advocate shall keep accounts of his clients’ money.
26. An advocate shall make proper entries in the accounts with reference to fees and
expenses.
27. An advocate shall intimate his client the receipt of such amount.
28. An advocate shall settle the fee due to him after a termination of the proceedings.
29. The advocate shall deduct the fee due to him from the clients’ money, if it is left
unsettled.
30. An advocate shall provide a copy of the clients account.

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 31. An advocate shall not make arrangements to make the amount of clients as loan.
32. An advocate shall not lend money to the client for legal proceedings.
33. An advocate, if in connection with the proceedings, shall not appear or act on behalf
of the opposite party.

DUTIES TOWARDS OPPONENT – Rule 34 to 35

34. An advocate should make all communications and negotiations to the opposite party
e through the opponent’s advocate.
35. An advocate shall carry out all legitimate promises – written or verbal.

DUTIES TOWARDS COLLEAGUES – Rule 36 to 44

36. An Advocate shall not advertise directly or indirectly.

37. An advocate shall not permit his name to be used in any unauthorised practice of law.
38. An advocate child not accept fees less than the taxable fee amount.
39. An advocate should not enter into a vakalatnama without the consent of previous
advocate.

ADVOCATE WELFARE FUND

40. Every advocate shall pay the stipulated amount to the State Bar council with which he
is enrolled. 80% of the said amount shall be retained by the State Bar Council and
20% has to be transferred to the Bar Council of India.
41. The sum collected by the Bar Councils shall be credited in “Bar Council Advocate
Welfare Fund.” The amount shall be utilised for the welfare of the advocates.
42. If any advocate fails to pay the amount, the State Bar Council shall issue a notice of
show cause within a month.
43. If the Advocate does not pay the amount with interest or fails to show the sufficient
cause, the State Bar Council may pass an order for suspension of such Advocate.
44. An appeal against the order may be filed with the Bar Council of India within 30
days.

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DUTIES TOWARDS OTHER ADVOCATES – Rule 45 to 52

45. An advocate shall not demand a fee for imparting training in law.
46. An Advocate shall render his legal assistance even though the person is unable to pay.

OTHER EMPLOYMENT

47. An advocate shall not engage in business, but he may be a sleeping partner in a firm.
48. An advocate may be director of a company with no executive duties.
49. An advocate channel, not be a full time salaried employee.
50. An advocate may have succeeded family business but may not personally participate
in the management.
51. Advocates may review parliamentary bills, edit textbooks, write newspaper articles,
poach for legal examination, and examine question papers with respect to other rules.
52. With the consent of the State Bar Council, the advocate may accept any part time
employment not inconsistent with the dignity of the profession.

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LANDMARK JUDGEMENTS

1. Shambhu Ram Yadav vs Hanum Das Khatry, AIR 2001 SC 2509

FACTS
In a letter to his client that was sent while he was serving as counsel in a lawsuit, the
respondent advocate stated that he had learned from another client that the judge who is
hearing his client's case accepts bribes and that another client had obtained favourable rulings
from that judge after paying bribes. Additionally, the respondent's attorney demanded
payment from his client of Rs.10,000 in order to bribe the judge and win a favourable ruling.
The responding attorney did not dispute writing the letter, but he claimed that the judge's
employment had been terminated due to his acceptance of bribes and that it was his
responsibility to tell the client of the truth. In any case, he soon stopped receiving payments.

JUDGEMENT
The State Bar Council expelled the advocate for two years after finding him guilty of
professional misconduct. On appeal, the Bar Council of India strengthened the penalty by
removing the advocate's name from the State roll. When a review petition was submitted, the
Disciplinary Committee approved it and changed the sentence of removing the name of the
advocate from the State roll to reprimanding the same, noting that the advocate's letter was
simply a response to his client's question and that he was an 80-year-old man with a spotless
record. However, the Supreme Court held that the legal profession is not a trade or business
while upholding the sentence of prohibiting the advocate. To guarantee that justice is
delivered in a fair and legitimate manner, members of the profession have a special obligation
to protect the integrity of their field and combat corruption. The advocate acted in a very
wrong manner since it not only harmed the public's perception of the profession but also
interfered with the administration of justice. The Bar Council's initial decision to remove the
advocate's name from the State roll was affirmed by the court.

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2. L.C. Goyal vs Mrs. Suresh Joshi & Ors, (1999) 3 SCC 376

FACTS
The lawyer for the appellant took the funds from his client that were paid as court fees. After
being confronted by his client, the lawyer mentioned earlier issued a cheque to the client for a
refund of the court charge, but the bank refused to honor the cheque since there weren't
enough cash. A complaint was filed with the State Bar Council, but because it wasn't resolved
in a timely manner, it was forwarded to the Bar Council of India. The BCI found the
appellant lawyer guilty of misconduct and five years of license suspension.

JUDGEMENT
The Supreme Court ruled that the legal profession is regarded as an honorable one with
strong traditions that has long served the requirements of society. As a result, it is expected of
persons in this field to respect these traditions and serve society in an honest and sincere
manner. If a noble profession has such standards, its members should behave in a way that
could be inspiring to others. A member of the profession draws dishonor to himself and the
profession to which he belongs by engaging in any behaviour that is against the established
norms and standards of this profession. Such actions cast doubt on the profession's legitimacy
and reputation. If any professional member deviates from these standards, he or she deserves
punishment appropriate to the seriousness of the misbehavior. However, the Disciplinary
Committee changed its ruling and lowered the license suspension from five years to two and
a half years upon the appellant's counsel's assurance that he would uphold the dignity of his
profession and that he had already reimbursed his client Rs. 40000.

3. K. Anjinappa vs K.C. Krishna Reddy, 2001 SCC Online SC 1275

FACTS
The petitioner brought a claim of professional misconduct against the respondent attorney
before the State Bar Council's Disciplinary Committee. The State Bar Council was required
by Section 35 of the Advocates Act, 1961 to resolve the complaint within a year of receipt;
however, because of their failure to do so, the case was referred to the Bar Council of India
under Section 36 of the Act. As one of the complainants had not signed the complaint, the

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Bar Council of India dismissed the case on the grounds that it was unmaintainable. 1273
cases that had been transferred from the State Bar Council to the Bar Council of India were
discovered to still be waiting.

JUDGEMENT
The Supreme Court ordered that the Bar Council of India's 1273 cases be resolved within a
year after expressing its discontent with the ongoing litigation in those issues. The Supreme
Court observed that as many as 490 cases pertain to the time period from 2016 to 2019 and
was not persuaded by the claim that the pandemic was to blame for the pendency. According
to Section 36B of the Advocates Act 1961, the Supreme Court ordered the Bar Council of
India and the State Bar Councils to rule on all complaints within a year. The Court ruled that
the Bar Council of India and the State Bar Councils have a duty to protect the honor and
integrity of the legal profession.

4. Noratanmal Chouraria vs M.R. Murli & Anr, (2002) 5 SCC 689

FACTS
The landlord was an advocate showing up in person in a disagreement between a tenant and
landlord. The landlord physically assaulted the renter during court hearings, threatened to
murder him, and told him not to show up. The procedures were started by the State Bar
Council's Disciplinary Committee and eventually handed over to the Bar Council of India.
The Bar Council of India's Disciplinary Committee ruled that the charges against the
respondent attorney are unreliable because there are no trustworthy records and no FIR has
been registered.

JUDGEMENT
According to the Supreme Court, the term "misconduct" can refer to improper activity,
intentional wrongdoing, or willful violations of a standard of behaviour. The phrase can also
refer to erroneous intentions, which are distinct from simple judgement errors. The court
further decided that the nature of the alleged conduct should be taken into consideration when
determining the appropriate degree of punishment. Despite coming to that conclusion, the
Supreme Court declined to hear the complainant/tenant's appeal because the incident
happened in 1995 and nothing else has happened since.

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CONCLUSION

The administration of justice is greatly aided by the noble profession of advocacy. As officers
of the court, attorneys have obligations to the court, their clients, the opposing side's
attorneys, and the Bar Council. The Advocates Act, 1961 and the Bar Council of India Rules
specify the obligations of an advocate, and advocates are required to uphold these obligations
with the utmost professionalism and integrity.

Advocates can help the legal system run effectively, safeguard the rights and interests of their
clients, support the honor and integrity of the legal profession, and advance justice in society
by carrying out their obligations.
Advocates must be diligent in carrying out their obligations to the court, their clients,
opposing counsel, and the Bar Council. They must also try to uphold the highest standards of
professionalism, ethics, and integrity in their practice.

While carrying out his professional duties, a lawyer owes obligations to his client, his
opponent, the court, the community at large, and himself. It requires a great deal of probity
and poise to find a middle ground when there are conflicting viewpoints to be considered
righteous. One of the Court's agencies in charge of providing high-quality facilities is an
attorney. A deficiency in services could take the shape of missing scheduled problems, filing
pleadings that are wrong or incomplete or even unreadable for an extended period of time
without proper oversight or evidence, or not having the funds to pay court and procedural
fees.

Generally, an advocate's behavior alone impacts his clients; nevertheless, in certain situations,
others who are directly impacted by the advocate's activities or inactions may file a lawsuit
against him.

Advocates have a dual responsibility to act as court officers and fearlessly defend their
clients' rights. Additionally, they must uphold the greatest standards of honor and probity. An

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advocate's deeds ought to reflect the elevated status their profession bestows upon them in
society.

BIBLIOGRAPHY

 Advocates act, 1961 - the bar council of India. Available at:

http://www.barcouncilofindia.org/wp-content/uploads/2010/05/Advocates-
Act1961.pdf
 Rules on professional standards " the bar council of India (no date) The Bar Council
of India. Available at: http://www.barcouncilofindia.org/about/professional-
standards/rules-on-professional-standards/
 Barman, N.Y. and A. (2023) Professional misconduct in the legal profession – a
critical analysis, LawBhoomi. Available at: https://lawbhoomi.com/professional-
misconduct-in-the-legal-profession-a-critical-analysis/
#Professional_ethics_of_an_advocate
 Bar Council of India rules. Available at: http://www.barcouncilofindia.org/wp-
content/uploads/2010/05/BCIRulesPartItoIII.pdf
 LawBhoomi (2023) Duties of an advocate, LawBhoomi. Available at:
https://lawbhoomi.com/duties-of-an-advocate/#3_Duties_of_an_Advocate_towards_S
ociety
 Summary of case laws on advocacy and professional ethics - summary of case laws
on advocacy and (no date) Studocu. Available at:
https://www.studocu.com/in/document/lloyd-law-college/constitution/summary-of-
case-laws-on-advocacy-and-professional-ethics/42838865

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