PROFESSIONAL ETHICS

AND PROFESSIONAL
ACCOUNTING SYSTEM
(CLINICAL)

Module 4
Bar Council of India and Professional and Other Misconduct

4.1 Bar Council Code of Ethics

4.2 Procedure of Complaints Against Advocates
4.3 Powers of the Disciplinary Committee of the Bar Council of India
4.4 Punishments for Misconduct and Remedies Against Order of Punishment
4.5 Standards of Professional Conduct and Etiquette
4.5.1 Duty to the Court
4.5.2 Duty to the Client
4.5.3 Duty to the Opponent
4.5.4 Duty to Colleagues
4.5.5 Duty in Imparting Training
4.5.6 Duty to Render Legal Aid
4.5.7 Section on other employments
4.6 Rules relating to Advocates’ right to take up law teaching
Bar Council Code of Ethics:
A code of ethics is a guide of principles designed to help professionals
conduct business honestly and with integrity.
A code of ethics, also referred to as an "ethical code," may encompass
areas such as business ethics, a code of professional practice, and an
employee code of conduct.

Rules on the professional standards that an advocate needs to

maintain are mentioned in Chapter II, Part VI of the Bar Council of
India Rules.
These rules have been placed there under section 49(1)(c) of the
Advocates Act, 1961. The Code on Professional Ethics of Lawyers in
India must be followed to retain their credibility in the legal
profession.

Rules on an Advocate’s Duty Towards the Court:

1. Act in a dignified manner: During the presentation of his case
and also while acting before a court, an advocate should act in a
dignified manner. He should at all times conduct himself with self-
respect. However, whenever there is proper ground for a serious
complaint against a judicial officer, the advocate has a right and duty
to submit his grievance to the proper authorities.

2. Respect the court: An advocate should always show respect

towards the court. An advocate has to bear in mind that the dignity
and respect maintained towards judicial office are essential for the
survival of a free community.
3. Not communicate in private: An advocate should not
communicate in private to a judge about any matter pending before
the judge or any other judge. An advocate should not influence the
decision of a court in any matter using illegal or improper means such
as coercion, bribe, etc.
4. Refuse to act illegally towards the opposition: An advocate
should refuse to act illegally or improperly towards the opposing
counsel or the opposing parties. He shall also use his best efforts to
restrain and prevent his client from acting in any illegal, improper
manner or using unfair practices in any matter towards the judiciary,
opposing counsel, or the opposing parties.
 5. Refuse to represent clients who insist on unfair means: An
advocate shall refuse to represent any client who insists on using
unfair or improper means. An advocate shall exercise his judgment in
such matters. He shall not blindly follow the instructions of the client.
He shall be dignified in the use of his language in correspondence and
during arguments in court. He shall not scandalously damage the
reputation of the parties on false grounds during pleadings. He shall
not use unparliamentary language during arguments in the court.
6. Appear in proper dress code: An advocate should appear in court
at all times only in the dress prescribed under the Bar Council of India
Rules and his appearance should always be presentable.
7. Refuse to appear in front of relations: An advocate should not
enter an appearance, act, plead, or practice in any way before a
judicial authority if the sole or any member of the bench is related to
the advocate as a father, grandfather, son, grandson, uncle, brother,
nephew, first cousin, husband, wife, mother, daughter, sister, aunt,
niece, father-in-law, mother-in-law, son-in-law, brother-in-law
daughter-in-law or sister-in-law.
8. Not to wear bands or gowns in public places: An advocate should
not wear bands or gowns in public places other than in courts, except
on such ceremonial occasions and at such places as the Bar Council
of India or as the court may prescribe.
9. Not represent establishments of which he is a member: An
advocate should not appear in or before any judicial authority, for or
against any establishment if he is a member of the management of the
establishment. This rule does not apply to a member appearing as
“amicus curiae” or without a fee on behalf of the Bar Council,
Incorporated Law Society, or a Bar Association.
10. Not appear in matters of pecuniary interest: An advocate
should not act or plead in any matter in which he has financial
interests. For instance, he should not act in a bankruptcy petition
when he is also a creditor of the bankrupt person. He should also not
accept a brief from a company of which he is a director.
11. Not stand as surety for client: An advocate should not stand as
a surety, or certify the soundness of a surety that his client requires
for any legal proceedings.
Rules on an Advocate’s Duty Toward the Client:
1. Bound to accept briefs: An advocate is bound to accept any brief
in the courts or tribunals or before any other authority in or before
which he proposes to practice. He should levy fees that are at par with
the fees collected by fellow advocates of his standing at the Bar and
the nature of the case. Special circumstances may justify his refusal
to accept a particular brief.
2. Not withdraw from service: An advocate should not ordinarily
withdraw from serving a client once he has agreed to serve them. He
can withdraw only if he has sufficient cause and by giving reasonable
and sufficient notice to the client. Upon withdrawal, he shall refund
such part of the fee that has not accrued to the client.
3. Not appear in matters where he is a witness: An advocate should
not accept a brief or appear in a case in which he is a witness. If he
has a reason to believe that in due course of events, he will be a
witness, then he should not continue to appear for the client. He
should retire from the case without jeopardizing his client’s interests.
4. Full and frank disclosure to the client: An advocate should, at
the commencement of his engagement and during the continuance
thereof, make all such full and frank disclosure to his client relating
to his connection with the parties and any interest in or about the
controversy as are likely to affect his client’s judgment in either
engaging him or continuing the engagement.
5. Uphold the interest of the client: It shall be the duty of an
advocate fearlessly to uphold the interests of his client by all fair and
honourable means. An advocate shall do so without regard to any
unpleasant consequences to himself or any other. He shall defend a
person accused of a crime regardless of his personal opinion as to the
guilt of the accused. An advocate should always remember that his
loyalty is to the law, which requires that no man should be punished
without adequate evidence.
6. Not suppress material or evidence: An advocate appearing for
the prosecution of a criminal trial should conduct the proceedings in
a manner that does not lead to a conviction of the innocent. An
advocate shall by no means suppress any material or evidence, which
shall prove the innocence of the accused.
7. Not disclose the communications between the client and
himself: An advocate should not by any means, directly or indirectly,
disclose the communications made by his client to him. He also shall
not disclose the advice given by him in the proceedings. However, he
is liable to disclose if it violates Section 126 of the Indian Evidence
Act, 1872.
8. An advocate should not be a party to stir up or instigate
litigation
9. An advocate should not act on the instructions of any person
other than his client or the client’s authorized agent.
10. Not charge depending on the success of matters: An advocate
should not charge for his services depending on the success of the
matter undertaken. He also shall not charge for his services as a
percentage of the amount or property received after the success of the
matter.
11. Not receive interest in an actionable claim: An advocate should
not trade or agree to receive any share or interest in any actionable
claim. Nothing in this rule shall apply to stock, shares and debentures
of 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.
12. Not bid or purchase property arising from legal proceedings:
An advocate should not by any means bid for, or purchase, either in
his own name or in any other name, for his own benefit or the benefit
of any other person, any property sold in any legal proceeding in
which he was in any way professionally engaged. However, it does
not prevent an advocate from bidding for or purchasing for his client
any property on behalf of the client provided the Advocate is
expressly authorized in writing on this behalf.
13. Not bid or transfer property arising from legal proceedings:
An advocate should not by any means bid in court auction or acquire
by way of sale, gift, exchange, or any other mode of transfer (either
in his own name or in any other name for his own benefit or the
benefit of any other person), any property which is the subject matter
of any suit, appeal or other proceedings in which he is in any way
professionally engaged.
14. Not adjust fees against personal liability: An advocate should
not adjust fees payable to him by his client against his liability to the
client, which does not arise in the course of his employment as an
advocate.
15. An advocate should not misuse or take advantage of the
confidence reposed in him by his client.
16. Keep proper accounts: An advocate should always keep
accounts of the clients’ money entrusted to him. The accounts should
show the amounts received from the client or on his behalf. The
account should show the expenses incurred for him and the
deductions made on account of fees with respective dates and all
other necessary particulars.
17. Divert money from accounts: An advocate should mention in
his accounts whether any monies received by him from the client are
on account of fees or expenses during any proceeding or opinion. He
shall not divert any part of the amounts received for expenses as fees
without written instruction from the client.
18. Intimate the client on amounts: Where any amount is received
or given to him on behalf of his client, the advocate must without any
delay intimate the client of the fact of such receipt.
19. Adjust fees after termination of proceedings: An advocate shall
after the termination of proceedings, be at liberty to adjust the fees
due to him from the account of the client. The balance in the account
can be the amount paid by the client or an amount that has come in
that proceeding. Any amount left after the deduction of the fees and
expenses from the account must be returned to the client.
20. Provide a copy of accounts: An advocate must provide the client
with a copy of the client’s account maintained by him on demand,
provided that the necessary copying charge is paid.
21. An advocate shall not enter into arrangements whereby funds
in his hands are converted into loans.
22. Not lend money to his client: An advocate shall not lend money
to his client for any action or legal proceedings in which he is engaged
by such client. An advocate cannot be held guilty for a breach of this
rule if in the course of a pending suit or proceeding, and without any
arrangement with the client in respect of the same, the advocate feels
compelled because of the rule of the Court to make a payment to the
Court on account of the client for the progress of the suit or
proceeding.
23. Not appear for opposite parties: An advocate who has advised
a party 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 in the same matter.
Procedure of Complaints Against Advocates:
Who is the person aggrieved in the complaint against the
advocate before the Bar Council?
• It is not an ordinary suit before a civil court.
• If the client is aggrieved by the negligence or misconduct of the
Advocate leading to deficiency in service, he has a remedy in the
Consumer Forum.
• Only an aggrieved person has to file a petition for remedy.
• But the before Bar Council, the person complaining is not seeking
any remedy for himself, but trying to point out misconduct and
asking the professional body to establish and protect the standards
in the profession.
• The complainant is serving the interests of the profession by
pointing out wrongdoers.
• If proven, his complaint will help the Bar Council to remove the
wrongful elements and clean the profession.
• Hence it is not a dispute between two persons for some benefit or
penalty.
• The people in general and advocates in particular should know
how misconduct will be dealt with.
Procedure for Complaints against Advocates:
• A complaint against an advocate has to be in the form of a petition.
• It has to be duly signed and verified as required under the Code of
Civil Procedure, 1908.
• A complaint can be filed in English or Hindi or in a regional
language where the language has been declared to be a state
language.
• In those cases where the complaint is in Hindi or any other
regional language, the State Bar Council shall translate the
complaint into English whenever a disciplinary matter is sent to
the Bar Council of India as per the Advocates Act.
• Every complaint shall be accompanied by the fees prescribed in
the Bar Council of India Rules.
Removal of Defects and Request for Particulars in a Complaint
• The Secretary of the Bar Council may require the complainant to
pay the prescribed fees if the proper fee has not been paid.
• He can also call the complainant to remove any defects and call
for the particulars or copies of the complaint or other documents
as may be considered necessary.
• On a complaint being found to be in order, it shall be registered
and placed before the Bar Council for such order as it may deem
fit to pass.
Withdrawal and Settlement of Complaints:
No matter taken up by the State Bar Council (either suo motu or on a
complaint made by other parties) for misconduct of advocates shall
be dropped solely because of its having been withdrawn, settled, or
otherwise compromised, or because the complainant does not want to
proceed with the inquiry.
Before referring a complaint for misconduct of an advocate to one of
its Disciplinary Committees to be specified by it, the Bar Council may
require a complainant to furnish further and better particulars or may
call for comments from the advocate complained against, within a
time to be fixed by it.
Show Cause Notice:
• Once the Bar Council has referred the complaint to a disciplinary
committee, the Registrar should expeditiously send a notice to the
advocate.
• The notice will ask the concerned advocate to show cause within
a specified date, on the complaint made against him and to submit
the statement of defense, documents, and affidavits in support of
the defense.
• It will also further inform him that in case of his non-appearance
on the fixed date of the hearing, the matter shall be heard and
determined in his absence.
• Appearance usually includes an appearance by an advocate or
through a duly authorized representative.
Powers of the Disciplinary Committee of the Bar Council of
India:
Powers of Disciplinary Committee:
Section 42 of the Advocate’s Act, 1961 provides powers of
disciplinary committee.
The section states that the disciplinary committee shall have the same
powers as vested in a civil court as per the Code of Civil Procedure,
1908 which are as follows:
• 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 commission for the examination of witnesses or
documents.
• Any other matter which may be prescribed.

Restricted Powers of the Disciplinary Committee:

The disciplinary committee can exercise these powers only with the
prior approval of certain authorities.
These are as follows:
• Attendance of any presiding officer of a court shall be allowed
only with the prior approval of the High Court to which such court
is subordinate.
• Attendance of any officer of the revenue court shall be allowed
only with prior approval of the State Government.
Miscellaneous Powers:
• The proceedings before the disciplinary committee shall be
deemed to be judicial proceedings.

• The disciplinary committee shall be deemed to be a civil court.

• If a chairman or any member of the disciplinary committee is

unavailable on the date fixed for hearing the matter then the
disciplinary committee may if it thinks fit proceed with the hearing
and pass necessary orders provided that the order passed shall not
be the final order.
• The proceedings and the order passed by such a committee shall
not be invalid merely because the chairman or all three members
of the disciplinary committee were not present.

• Where the final orders cannot be made because of want of

majority among the disciplinary committee or is not by the opinion
of the Chairman or the members of the disciplinary committee
then such matter or case shall be placed before the Chairman of
the Bar Council.

• If the Chairman of the Bar Council is acting as the chairman of the

disciplinary committee, then the case shall be placed before the
Vice Chairman of the Bar Council.
• After hearing the case, the Vice Chairman shall deliver his opinion
and the disciplinary committee shall follow such final order.

• The disciplinary committee also has the power to impose costs of

proceedings as it may deem fit and such order shall be executable
as if it were the orders of the High Court or Supreme Court.

• The disciplinary committee also has the power to review its orders
under section 44 of the Advocates Act, 1961.
Punishments for Misconduct and Remedies Against Order of
Punishment:

Section 35, Advocates Act 1961:

Punishment of advocates for misconduct:

• 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 State Bar Council may, either of its own motion or on an

application made to it by any person interested, withdraw a
 proceeding pending before its disciplinary committee and direct
the inquiry to be made by any other disciplinary committee of that
State Bar Council.

• The disciplinary committee of a State Bar Council shall fix a date

for the hearing of the case and shall cause a notice thereof to be
given to the advocate concerned and to the Advocate-General of
the State.

• 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;
• remove the name of the advocate from the State roll of advocates.
• 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.

Where any notice is issued to the Advocate-General, the Advocate-

General may appear before the disciplinary committee of the State
Bar Council either in person or through any advocate appearing on
his behalf.
Explanation: In this section, the expressions "Advocate-General"
and "Advocate-General of the State" shall, in relation to the Union
territory of Delhi, mean the Additional Solicitor General of India.
Remedies Against Order of Punishment:

The Advocate Act provides remedies against the order of punishment.

An advocate aggrieved by the order of the Disciplinary Committee
can evoke the following remedies -

1) Review

2) Revision

3) Application for Stay

4) Appeal
1) Review:

• It is provided in Section 44 of the Advocates Act,1961.

• By this Section the Disciplinary Committee of the Bar Council of

its own motion or otherwise review any order, within 60 days of
the date of the 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.

• According to Section 48-AA of the Bar Council of India or any of

its Disciplinary Committee, may on its own motion or otherwise,
review any order, within 60 days of the date of that order, passed
by it under the Advocate Act 1961.
2) Revision: Section. 48-A (Amendment 1964):

• The Bar Council of India may, at any time call for the record of
proceeding under this Act which has been disposed of by the State
Bar Council or a Committee thereof, and from which no appeal
lies, to satisfy itself as to the legality or propriety of such disposal
and may pass such orders in relation thereto as it may think fit.

• No order that prejudicially affects any person shall be passed

under this section without giving a reasonable opportunity to be
heard.
3) Application for Stay:

• According to Section 40(1) of the Advocate Act,1961, an Appeal

made under Section 37 or Section 38 shall not operate as a stay of
the order appealed against, but the Disciplinary Committee of
India and the Supreme Court as the case may be, may for sufficient
cause direct the stay of such order on such terms and conditions
as it may deem fit.
• Rule 29 of Chapter I Part VII of the Bar Council of India Rules
provides that an application for stay shall be accompanied by an
affidavit and the fee prescribed by the Bar Council of India.
4) Appeal:

A) Appeal to the Bar Council of India

B) Appeal to the Supreme Court

A) Appeal to the Bar Council of India -

• In case the order of punishment has been passed by the
Disciplinary Committee of the State Bar Council, an Appeal may
be preferred to the Bar Council of India under Section. 37 of the
Advocates Act,1961.
• It provides that any person aggrieved by an order of the
Disciplinary Committee of a State Bar Council made under
Section 35, of the Advocate-General of State may, within 60 days
of the date of the communication of the order to him, prefer an
appeal to the Bar Council of India.
• Under Section 37(2), every such Appeal shall be heard by the
Disciplinary Committee of the Bar Council of India which may
pass such order including an order varying the punishment
awarded by the Disciplinary Committee of the State Bar Council
thereon as it deemed fit.

• Provided that no order of the Disciplinary Committee of the State

Bar Council shall be varied by the Disciplinary Committee of the
Bar Council of India to prejudicially affect the person aggrieved
without giving him a reasonable opportunity of being heard.
 B) Appeal to the Supreme Court -

• As per section 38 of the Advocates Act,1961 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,
as the case may be, may, within 60 days of the date on which the
order is communicated to him, prefer an appeal to the Supreme
Court and the Supreme Court may pass such order including an
order varying the punishment awarded by the disciplinary
committee of the Bar Council of India thereon as it deems fit.

• Provided that 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.
• The Bar Council of India has framed the rules as to the procedure
to be observed in case of an Appeal.

• The Appeal memo in a prescribed form is to be accompanied by

the certified copy of the order appealed against and signed by the
appellant with a prescribed fee within the limitation period. Delay
can be condoned if satisfactorily explained and to be supported by
an affidavit.

• Thus, an appeal against the order passed by the Disciplinary

Committee may be referred to the Bar Council of India and an
appeal against the order of the Bar Council of India may be
referred to the Supreme Court.
Case law:

O.N. Mohindro vs District Judge, Delhi, AIR 1971, SC 107

In this case, it was held that the appeal to the Supreme Court is not
restricted.
It is not an appeal on law alone but also on fact. Supreme Court must
in all cases go into the matter to satisfy itself that justice has been
done by the Disciplinary Committee Committees.
The Supreme Court possesses under the constitution special power of
review and further may pass any order to do full and effective justice
under section 38 Supreme Court has jurisdiction to pass in such
appeals any order it deems fit.
Duties of an Advocate towards Colleagues:

1. Duty of professional courtesy and cooperation:

Advocates must treat their colleagues with professional courtesy,
respect, and cooperation.
They must not engage in any conduct that may harm the reputation
or interests of their colleagues.
Advocates must strive to maintain a cordial and professional
relationship with their colleagues and promote a healthy and
harmonious working environment within the legal profession.
 2. Duty to report professional misconduct:
Advocates have a duty to report any instance of professional
misconduct by their colleagues to the appropriate authorities, such as
the Bar Council or the court.
Advocates must not shield or protect their colleagues who engage in
unethical or illegal conduct.
Reporting professional misconduct is essential to maintain the
integrity and reputation of the legal profession and uphold the
interests of justice.

3. Duty to mentor and guide junior advocates:

Advocates who have gained experience and expertise in the legal
profession have a duty to mentor and guide junior advocates.
They must share their knowledge, skills, and experience with junior
advocates and help them in their professional development.
Advocates must also strive to maintain a healthy and respectful
relationship with their juniors, providing them with guidance,
support, and constructive feedback.

Duty in imparting training:

It is improper for an advocate to demand or accept fees or any
premium from any person as a consideration for imparting training in
law under the rules prescribed by the State Bar Council to enable such
person to qualify for enrolment under the Advocates Act, 1961.
LEGAL AID:
Article 39-A of the Indian Constitution provides that the operation of
the legal system promotes justice, on a basis of equal opportunity, and
shall, in particular, provide free legal aid, by suitable legislation or in
any other way, to ensure that opportunities for securing justice are not
denied to any citizen because of economic or other disabilities.

Duty To Render Legal aid :

Rule 46 of Section VI of Chapter II of Part VI of Bar Council of India
Rules makes it clear that,
Every Advocate shall in the practice of the profession of law bear in
mind that anyone 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
obligation an advocate owes to society.
RESTRICTION ON OTHER EMPLOYMENT

Part VI Chapter II Sec. 7, Bar Council of India Rules

Restriction on other Employments:

Section 47. 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.
Section 48. An Advocate may be Director or Chairman of the Board
of Directors of a Company with or without any ordinarily 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.
1. An advocate shall not be a full-time salaried employee of any
person, government, firm, corporation or concern, so long as he
continues to practice, 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.
Nothing in this rule shall apply to a Law Officer of the Central
Government of a State or any Public Corporation or body constituted
by State who is entitled to be enrolled under the rules of his State Bar
Council made under Section 28(2) (d) read with Section 24 (1) of the
Act despite his being a full-time salaried employee.
Law Officer for these Rules means a person who is designated by the
terms of his appointment, and who, by the said terms, is required to
act and/or plead in Courts on behalf of his employer.
2. 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.

3. He may continue to hold a share with others in any business

which has descended to him by survivorship of inheritance or by
will, provided he does not personally participate in the
management thereof.
4. 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.

5. Nothing in these rules shall prevent an advocate from accepting

after obtaining the consent of the State Bar Council, part-time
employment provided that in the opinion of the State Bar
Council, the nature of the employment does not conflict with his
professional work and is not inconsistent with the dignity of the
profession.
 6. This rule shall be subject to such directives if any as may be
issued by the Bar Council of India from time to time.

Right of an Advocate to take up law teaching:

As per The Advocates (Right to Take Up Law Teaching) Rules, 1979.
An Advocate may, while practicing, take up the teaching of law in
any educational institution which is affiliated with a university within
the meaning of the University Grants Commission Act, 1956 (3 of
1956), so long as the hours during which he is so engaged in the
teaching of law do not exceed three hours in a day.