INTRODUCTION

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 the persons which 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 a
misdemeanour, impropriety, mismanagement, offense, but not negligence or
carelessness.[1] From the definition, it is now clear that the act of professional misconduct is
done purely with an intention of getting unlawful gains. The Advocates Act, 1961 and the
Indian Bar Council play a vital role in providing rules and guidelines regarding the working,
code of conduct and such other matters concerning lawyers and advocates in India .
The attributes of a profession are:

1. Existence of a body of specialized knowledge or techniques.

2. Formalized method of acquiring training and experience.
3. Establishment of a representative organization with professionalism
as its goal.
4. Formation of ethical codes for the guidance of conduct.
5. Charging of fees based on services but with due regards to the priority
of service over the desire of monetary rewards.
Misconduct means any acts which are unlawful in nature even though they are
not inherently wrongful. Before the Advocates Act, 1961, we had the Legal
Practitioners Act, 1879. There is no definition given for the term ‘misconduct’
in the Act, but the term ‘unprofessional conduct’ is being used in the Act. Some
of the instances of professional misconduct are as follows:

 Dereliction of duty
 Professional negligence
 Misappropriation
 Changing sides
 Contempt of court and improper behaviour before a Magistrate
 Furnishing false information
 Giving improper advice
 Misleading the clients in court
 Not speaking the truth
Meaning and Definition

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.

A person who carries/undertakes the profession is called a professional. Depending on the

profession a person undertakes, he/she is identified with a special name relevant to the
profession.

Misconduct, according to Oxford dictionary means a wrongful, improper, or unlawful conduct

motivated by premeditated act. It is a behavior not conforming to prevailing standards or laws,
or dishonest or bad management, especially by persons entrusted or engaged to act on another's
behalf. The expression professional misconduct in the simple sense means improper conduct.
In law profession misconduct means an act done willfully with a wrong intention by the people
engaged in the profession. It means any activity or behaviour of an advocate in violation of
professional ethics for his selfish ends. If an act creates disrespect to his profession and makes
him unworthy of being in the profession, it amounts to professional misconduct. In other word
an act which disqualifies an advocate to continue in legal profession.

CASE LAW

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 favorable 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.
Advocates Act, 1961

The provisions of Section 35 of the Advocates Act deal with professional

misconduct of lawyers and advocates in India, which read as:

A person is found guilty of professional misconduct; it shall refer the case to a

disciplinary committee, shall fix a date of hearing and issue a show cause
notice to the Advocate and the Advocate General of the State. The disciplinary
committee of the State Bar Council, after being heard of both the parties, may:

1. Dismiss the complaint, or where the proceedings were initiated at the

instance of the State Bar Council, directs that proceedings be filed;
2. Reprimand the advocate;
3. Suspend the advocate from practice for such a period as it deems fit;
4. Remove the name of an advocate from the state roll of advocates.[3]
Misconduct is of infinite variety; this expression must be understood in a broad
meaning, such that it extends the meaning under natural law, and there is no
justification for restricting their natural meaning. Section 49 of the Advocate
Act empowers the Bar Council of India to frame rules and standards of
professional misconduct. Under the Act, no person has a right to make
advertisement or soliciting; it is against advocate’s code of ethics. He is also
not entitled to any advertisement through circulars, personal communications
or interviews, he is not entitled to demand fees for training and to use
name/service for unauthorized purposes.[4]
Contempt of Court as professional misconduct

Contempt of court may be defined as an offense of being disobedient or disrespectful towards

the court or its officers in the form of certain behaviour that defies authority, justice, and dignity
of the court.[5] 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).[6]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.

There are many other landmark judgments regarding the cases involving professional
misconduct of the advocates. In the case of V.C. Rangadurai v. D.Gopalan[7], the court looked
into the matter of professional misconduct in such a way that the decision was made in a
humanitarian manner, considering the future of the accused in this case. The court held that
“even so justice has a correctional edge, a socially useful function, especially if the delinquent
is too old to be pardoned and too young to be disbarred. Therefore, 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 and but did
not jeopardize the future of the accused person. In various other cases like J.S. Jadhav v.
Mustafa Haji Muhammad Yusuf[8], the court delivered the decision in such a way that it created
a notion in the minds of the wrongdoers that offenders will be punished accordingly.
Conclusion
From the analysis of various cases and certain facts and circumstances, it will
be clear that unlike any other profession, advocacy is regarded as a noble
profession and professional ethics must be maintained. Courts have dealt with
various cases of professional misconduct wherein attempt of murder by the
advocate towards his client have also been reported. Hence, there must be
interference from concerned authorities so that persons with a criminal
background are kept away from this profession. Even though there are
guidelines dealing with the social background of the person enrolling in this
profession, i.e. the person enrolling must be free from any criminal cases, it
does not prove that the person has a criminal nature of his own. So Bar Council
can implement certain rules and regulation so that the conduct of the person
who is showing criminal behaviour can be controlled strict guidelines ensuring
that the person no longer acts unlawfully against his profession. There must
be various career guidance and development programs conducted by the Bar
Council immediately after enrolment so that new legal professionals they will
be aware of the do’s and don’t of this profession and there will be a better
group of advocates in the coming decades.