PROFESSIONAL ETHICS AND

PROFESSIONAL ACCOUNTING SYSTEM

ROLE OF DISCIPLINARY COMMITTEE

ARMY INSTITUTE OF LAW, MOHALI

In Partial Fulfilment OF BA-LLB 5 Years

Degree

Submitted By: Submitted To:

Shivam Kumar Yadav Dr. Kulpreet Kaur
Roll No- 1755
 ACKNOWLEDGEMENT

With immense pleasure I, Shivam Kumar Yadav am

presenting my research project as part of the curriculum. I
wish to thank all the people who gave me unending support.

I express my profound thanks to Dr. Kulpreet Kaur ma’am for

her guidance and support in preparing this project.
Introduction
Advocacy is a noble profession and an advocate is one of the most accountable, privileged
and erudite persons of the society and his actions act as role model for the society, which are
necessary to be regulated. A lawyer is bound to conduct himself in a manner befitting the
high and honourable legal profession and if he departs from the high standard which the
profession has set for itself and demands of him in professional matter, he will be liable to
disciplinary action.1
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. The Advocate Act, 1961, provides that,
on receipt of a complaint or otherwise a State Bar Council or Bar Council of India has reason
to believe that any advocate on its roll has been guilty of professional or other misconduct, it
can refer the case for disposal to it disciplinary committee.
The Supreme Court in the case of State of Punjab v. Ram Singh 2 observed that the term
‘misconduct’ may involve moral turpitude, it must be improper or wrong behaviour, unlawful
behaviour, wilful in character 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 act complained of should bear forbidden quality or character.
Noratanmal Chaurasia v. M.R. Murli3
The Supreme Court in the present case held that misconduct has not been defined in
Advocates Act 1961. It further stated that Misconduct, inter alia, envisages breach of
discipline, although it would not be possible to lay down exhaustively as to what would
constitute misconduct and indiscipline which, however is wide enough to include wrongful
omission or commission, whether done intentionally or unintentionally. It means ‘improper
behaviour, intentional wrongdoing or deliberate violation of a rule of standard of behaviour.’

Organisation of Disciplinary Committee

According to Section 9 of Advocates Act 1961 a Bar Council shall constitute one or more
disciplinary committees, each of which shall consist of three persons of whom two shall be
persons elected by the Council from amongst its members and the other shall be a person co-
opted by the Council from amongst advocates who possess the qualifications specified in the
proviso to sub-section (2) of section 3 and who are not members of the Council, and the
senior-most advocate amongst the members of a disciplinary committee shall be the
Chairman thereof.

Disciplinary Committee of a State Bar Council

1
Re , M., an advocate, AIR 1957 SC 149
2
Air 1992 SC 2188
3
2004 AIR SCW 2894
Section 35(1) provides that 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 Bar Council
has a statutory duty to forward the complaints to the disciplinary committee.
The disciplinary committee is required to make inquiries in the cases referred to it by the
State Bar Council. Further Section 35(2) provides that where a case is referred to the
disciplinary committee for inquiry and disposal, the committee is required to fix a date for the
hearing of the case and cause a notice thereof to the advocate himself and the Advocate-
General of the State.
Section 35(3) provides that 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: ―
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State
Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.
Further sub-section (4) provides that where an advocate is suspended from practice under
clause (c) of sub-section (3), he shall be debarred from practising in any court or before any
authority or person in India during the period of suspension.

Disciplinary Committee of the Bar Council of India

Section 36 provides for the constitution of a disciplinary committee by the Bar Council of
India, it states that where on receipt of a complaint or otherwise the Bar Council of India has
reason to believe that any advocate whose name is not entered on any State roll has been
guilty of professional or other misconduct, it shall refer the case for disposal to its
disciplinary committee.
Section 36(2) provides that the disciplinary committee of the Bar Council of India may either
of its own motion or on a report by any State Bar Council or on an application made to it by
any person interested, can withdraw for inquiry before itself any proceedings for disciplinary
action against any advocate pending before the disciplinary committee of any State Bar
Council and dispose of the same. The disciplinary committee of the Bar Council of India, in
disposing of any case shall observe, the procedure laid down in section 35 and the references
to the Advocate-General in that section being construed as references to the Attorney-General
of India. Also, in disposing of any proceedings the disciplinary committee of the Bar Council
of India may make any order which the disciplinary committee of a State Bar Council can
make under sub-section (3) of section 35, and where any proceedings have been withdrawn
for inquiry by the disciplinary committee of the Bar Council of India, then the State Bar
Council concerned shall give effect to any such order.

Expedite Disposal of disciplinary proceedings

Section 36-B provides that the disciplinary committee of a State Bar Council shall dispose of
the complaint received by it under section 35 expeditiously and 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, it further
provides that failing which such proceedings shall stand transferred to the Bar Council of
India which may dispose of the same as if it were a proceeding withdrawn for inquiry under
sub-section (2) of section 36.

Powers of Disciplinary Committee

Section 42 of the Advocates Act 1961 states the powers of disciplinary committees of both
State Bar Councils as well as Bar Council of India. It provides that 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: ―
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring discovery and production of any documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copies thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) any other matter which may be prescribed
It further states that no such disciplinary committee shall have the right to require the
attendance of:
(a) any presiding officer of a court except with the previous sanction of the High Court to
which such court is subordinate;
(b) any officer of a revenue court except with the previous sanction of the State Government.
(2) All proceedings before a disciplinary committee of a Bar Council shall be deemed to be
judicial proceedings within the meaning of sections 193 (punishment for false evidence) and
228 (Intentional insult or interruption to public servant sitting in judicial proceeding) of the
Indian Penal Code, and every such disciplinary committee shall be deemed to be a civil court
for the purposes of sections 480, 482 and 485 of the Code of Criminal Procedure.
(3) For the purposes of exercising any of the powers conferred under section 42(1), a
disciplinary committee may send, any summons or other process, for the attendance of a
witness or the production of a document required by the committee or any commission which
it desires to issue, to any civil court in the territories to which this Act extends and the civil
court shall cause such process to be served or such commission to be issued, as the case may
be, and may enforce any such process as if it were a process for attendance or production
before itself.
(4) In the case of absence of the Chairman or any member of a disciplinary committee on a
date fixed for the hearing of a case before it, the disciplinary committee may, if it so thinks
fit, hold or continue the proceedings on the date so fixed and no such proceedings and no
order made by the disciplinary committee in any such proceedings shall be invalid merely by
reason of the absence of the Chairman or member on any such date, however, no final orders
of the nature referred to in sub- section (3) of section 35 shall be made in any proceeding
unless the Chairman and other members of the disciplinary committee are present.
(5) Where no final orders of the nature referred to in sub- section (3) of section 35 can be
made in any proceedings in accordance with the opinion of the Chairman and the members of
a disciplinary committee either due to want of majority opinion amongst themselves or
otherwise, the case, shall be laid before the Chairman of the Bar Council concerned or if the
Chairman of the Bar Council is acting as the Chairman or a member of the disciplinary
committee, then before the Vice-Chairman of the Bar Council, and the said Chairman or the
Vice-Chairman of the Bar Council, shall deliver his opinion, after any such hearing as he
thinks fit and the final order of the disciplinary committee shall follow such opinion.

Procedure followed by Disciplinary Committee

Part VII of the Rules of the Bar Council of India deals with the procedure to be followed by
Disciplinary Committee of State Bar Councils as well as the Bar Council of India. Rule 1
states that a complaint against an Advocate shall be in the form of a petition duly signed and
verified as required under the Code of Civil Procedure, 1908. The complaint could be filed in
English or in Hindi or in regional language, and the State Bar Council shall translate the
complaint in English whenever a disciplinary matter is sent to the Bar Council of India under
the Advocates Act. Before referring a complaint to one of its Disciplinary Committees, the
Bar Council may require a complainant to furnish further and better particulars within a time
fixed by it, and may also call for comments from the Advocates complained against.
Rule 3 states that after a complaint has been referred to a Disciplinary Committee by the Bar
Council, the Registrar sends a notice to the Advocate concerned requiring him to show cause
within a specified date on the complaint made against him and to submit the statement of
defence, documents and affidavits in support of such defence, and further informs him that in
case of his non-appearance on the date of hearing fixed, the matter shall be heard and
determined in his absence.
Rule 4 provides that the Chairman of the Disciplinary Committee shall fix the date, hour and
place of the enquiry which shall not ordinarily be later than thirty days from the receipt of the
reference. The Registrar shall give notice of such date, hour and place to the complainant or
other person aggrieved, the advocate concerned and the Attorney General or the Additional
Solicitor General of India, or the Advocate General as the case may be, and shall also serve
on them copies of the complaint and such other documents, as the Chairman of the
Committee may direct at least ten days before the date fixed for the enquiry.
Rule 6 states that after notice is served the parties can appear in person or can be represented
by an Advocate. Also, the Bar Council or its Disciplinary Committee may at any stage of a
proceeding appoint an Advocate to appear as Amicus Curiae and such advocate may be paid
such fee as the council or the Committee may decide.
Rule 8 provides that the Disciplinary Committee after hearing the Attorney General or the
Additional Solicitor General of India or the Advocate General as the case may be or their
Advocate, and parties or their Advocates, if they desire to be heard, determine the matter on
documents and affidavits and if it is of the opinion that it should be in the interest of justice to
permit cross examination of the deponents to take some oral evidence, then in such case the
procedure for the trial of civil suits shall as far as possible be followed.
Rule 14 states that the finding of the majority of the members of the Disciplinary Committee
shall be the finding of the Committee. The reason given in support of the finding may be
given in the form of a judgement, and in the case of a difference of opinion, any member
dissenting shall be entitled to record his dissent giving his own reason. It shall be competent
for the Disciplinary Committee to award such costs as it thinks fit. Further the Registrar of
the Disciplinary Committee is required to send a certified copy of the final order of
judgement, free of charge to each of the parties in the proceedings,

Remedies against orders of Discipline Committee

Review
Section 44 of the Advocates Act provides that the disciplinary committee of a Bar Council
may of its own motion or otherwise 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.
Chapter II of Part VII of the Rules of the Bar Council of India deals with review. Rule 1
provides that an application for review under Section 44 of the Advocates Act shall be in
form of petition duly signed and supported by an affidavit accompanied by the prescribed fee
and shall be filed within 15 days from the date of the order sought to be reviewed.

Appeal
Appeal to Bar Council of India
The Advocates Act provides for an appeal against any order of disciplinary committee of
State Bar Council as well as Bar Council of India. Section 37 provides that any person
aggrieved by an order of the disciplinary committee of a State Bar Council or the Advocate-
General of the State may, within sixty days of the date of the communication of the order to
him can prefer an appeal to the Bar Council of India. Further it provides that every such
appeal shall be heard by the disciplinary committee of the Bar Council of India which may
pass such order as it deems fit including an order varying the punishment awarded by the
disciplinary committee of the State Bar Council. However, no order of the disciplinary
committee of the State Bar Council shall be varied by the disciplinary committee of the Bar
Council of India so as to prejudicially affect the person aggrieved without giving him
reasonable opportunity of being heard.

Appeal to the Supreme Court

Section 38 of the Act states that any person aggrieved by an order made by the disciplinary
committee of the Bar Council of India under section 36 or section 37 or the Attorney-General
of India or the Advocate-General of the State concerned, within sixty days of the date on
which the order is communicated to him, can prefer an appeal to the Supreme Court and the
Supreme Court may pass such order as it deems fit including an order varying the punishment
awarded by the disciplinary committee of the Bar Council of India. However, no order of the
disciplinary committee of the Bar Council of India shall be varied by the Supreme Court so as
to prejudicially affect the person aggrieved without giving him a reasonable opportunity of
being heard.

Case Laws related to Professional Misconducts

Smt. Siya Bai v. Sita Ram4
In this case an advocate withdrew amounts from Court as decretal amounts deposited in suits
and it was not paid to the complainant nor any accounts were furnished. One of the members
of the Disciplinary Committee of M.P. Bar Council did not sign the judgement within the
limitation period provided under Section 36-B and therefore the case was transferred to the
Disciplinary Committee of Bar Council of India, which decided the case. The advocate
pleaded that the amount drawn was adjusted towards the fee due to him and also towards
other expenses but it was not found true and not accepted, therefore, the advocate was held
guilty of professional misconduct for illegally retaining the amount. The Disciplinary
Committee ordered him to refund an amount of Rs. 2000 with interest @ 10% per annum
with the cost of Rs. 5000, within 2 months and the Committee passed order for suspension for
a period of one year.
Mrs. M.S. Patwardhan v V.V. Karmarkar5
In this case the complainant decided to purchase 100 acres of land through a real estate agent
for undertaking an agricultural development project by forming a cooperative society. The
respondent advocate was engaged for completing the necessary legal formalities. The
advocate was paid Rs.2,45,000 for the purchase of land, stamp duty, registration charges and
other expenses. The respondent advocate, in spite of the request, did not render the account
and did not pay back the balance amount lying with him. After examining the statements
made y the respondent and other relevant documents the Committee came to the conclusion
that the respondent has failed to give the complainant any account much less proper account
of the expenses and fees. He had also failed to refund the complainant the balance amount.
The Committee ordered that the respondent’s license to practice be suspended for 5 years and
also ordered the advocate to refund Rs. 83,000 with interest @ 10% per annum. In case the
said amount was not refunded, his license to practise was to e further suspended for an
additional period of 5 years. Cost of Rs. 10,000 was also imposed on the respondent
advocate.
P.D. Gupta v. Ram Murti and Another6

4
BCI Trust, Selected Judgements on Professional Ethics, p.28
5
BCI Trust, Selected Judgements on Professional Ethics, p.72
6
AIR 1996 SC 98
In this there was one person named Srikishan Dass who died leaving behind extensive
immovable properties. Claims to the said properties were made by one Vidyawati claiming to
be the sister of the deceased, one Ram Murti and two others who claimed themselves to be
the heir of the deceased. Later the said properties were purchased by P.D. Gupta, the
advocate of Vidyawati knowing them to be disputed. The advocate thereafter sold the
property to a third party and made profit. A complaint was made against the advocate to the
Bar Council of Delhi which referred it to the Disciplinary Committee. The disciplinary
committee of the Bar Council of Delhi could not dispose of the complaint within a period of
one year and therefore the proceedings was transferred to the Bar Council of India under
Section 36-B of the Advocates Act. The disciplinary committee of the Bar Council of India
found him guilty of professional misconduct and suspended him from practice for period of
one year. Also, on an appeal the Supreme Court found the order genuine and valid and hence
did not interfered with the punishment awarded to P.D. Gupta.

Prof. Krishnaraj Goswami v. Vishwanath D. Mukashikar7

In this case the complainant engaged the appellant advocate to file suit in the Bombay High
Court. On demand at different occasions by the advocate the complainant paid Rs. 29,000 in
total for filing the suit. The appellant advocate made a delay in filing the suit and also made a
delay in moving the interim application due to which the complainant suffered huge losses.
The complainant gave two written notices to the appellant advocate for the return of the
papers and no objection certificate so that he could engage separate lawyers but the appellant
advocate did not respond. It was also alleged by the complainant that the advocate did this
deliberately in connivance with the other party. The Disciplinary Committee of the Bar
Council of Maharashtra and Goa found him guilty of professional misconduct and imposed
punishment of suspension of licence for three years and on the other issues as to loss suffered
and the advocate conniving with other side, the Committee disbelieved the complainant.
The appellant advocate challenged the said order of the Disciplinary Committee of the Bar
Council of Maharashtra and Goa before the Bar Council of India. The Committee Held him
guilty for committing professional misconduct as he did not return the papers as well as did
not give the no objection memo even after being demanded by the complainant. However,
taking into consideration the facts and circumstances, the Committee modified the
punishment and the punishment of suspension of his license for 3 years was set aside and he
was only reprimanded.
John D’Souza v. Edward Ani8
In the present case the appellant who was a practicing lawyer was complained against by the
respondent Edward Ani with the Karnataka State Bar Council under Sec 35 of the Advocates
Act alleging that the appellant with whom a will executed by his mother-in-law, was
entrusted for safe custody refused to return the same, even after sending two letters
demanding the appellant to hand over the will. The State Bar Council rejected the complaint
holding that there was no prima facie case made out against the appellant.
The respondent then filed a review petition before the Bar Council of India which allowed the
review petition holding that there existed prima facie case of misconduct against the appellant

7
BCI Trust, Selected Judgements on Professional Ethics, p.135
8
AIR 1994 SC 975
advocate and remitted the matter to the Disciplinary Committee of the State Bar Council,
which found him not guilty of professional misconduct.
The order of the Disciplinary Committee was challenged before the Bar Council of India
which held that the appellant advocate was guilty of professional misconduct and suspended
him from practice for one year. Thereafter, an appeal was filed by the appellant advocate
before the Supreme Court of India against the order of the Disciplinary Committee of Bar
Council of India. The Supreme Court held that in case of complaint against an advocate for
professional misconduct, the burden of proof lies on the complainant, and in this the
complainant was able to prove that the advocate committed the breach of his professional
duty and therefore, the Supreme Court held the advocate guilty and upheld the order of the
Disciplinary Committee of the Bar Council of India.

Conclusion
Legal profession is not a trade or business, it’s a gracious, noble, and decontaminated
profession for the welfare 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 and to ensure that the noble profession is
not contaminated by the acts of few members of the bar, the disciplinary committees exist to
keep a check and help in the development of the same.