August 6,2019:
The Author, Trishala Singh, is pursuing LLM from Amity University,Noida. She is currently interning with LatestLaws.com.
Advocacy is a noble and honourable profession. An advocate must strictly comply with professional ethics or else he may be liable for professional misconduct.
The term ‘Professional Misconduct’ in the simple sense means improper conduct. In legal sense it means an act done willfully with a wrong intention by the people engaged in the profession. It means any activity or behavior of an advocate in violation of professional ethics for his selfish ends. If an act results in dispute to his profession and make him unfit of being in the profession, it amounts to ‘Professional Misconduct’. In other words, an act which disqualifies an advocate to continue in legal profession.
Professional misconduct may consist –
- in betraying the confidence of a client
- in attempting by means to practice fraud
- to deceive the Court or adverse party or his Counsel
In State of Punjab v. Ram Singh[1], The Supreme Court held that the term ‘misconduct’ may involve –
- moral turpitude
- improper or wrongful behavior
- unlawful behavior
- willful in character
- a forbidden act
- transgression
- carelessness or negligence in performance of duty
- or the act complained of bears forbidden quality or character
Chapter -V of the Advocates Act of 1961 deals with conduct of Advocates it describes provision relating to punishment for professional and other misconducts. Section 35(1) of the Advocates Act, 1961 provides for referring any complaint to disciplinary committee for disposal.
Though the act as well as Bar Council are silent in providing the exact definition of professional misconduct, through punishments are provided on acts of omission and commission by any member of the profession.
In Shambhu Ram Yadav v. Hanuman Das Khatry[2], the Supreme Court made it clear that writing a letter to his client to send money to bribe the Judge is a serious misconduct. It also held that legal profession is not a trade or business.
Misconduct of an Advocate may be explained with reference to the following –
1. Dereliction of Duty
Dereliction of Duty means handing over brief to another advocate and such transfer is considered as unprofessional but if he does so with the consent of his client, it is not improper.
Case: V.C Ranga Durai v. D Gopalan[3]
The Supreme Court in this case held that a lawyer entrusted with a brief must follow the norms of professional ethics and must protect the interests of his clients.
2. Professional Negligence
An advocate is expected to exercise reasonable skill and prudence and should not be negligent. In order to constitute misconduct, the negligence must be accompanied by –
- suppression of truth or
- deliberate misrepresentation of facts
Case: Mohd. Ismail v. Balarathna[4]
It was held that it amounts to misconduct if an advocate neglects to furnish requisite documents or material papers despite of repeated adjournments.
Case: N.G Dastane v. Shrikant S. Shivde[5]
The Supreme Court has made it clear that seeking repeated adjournments for postponing examination of witnesses present in the Court amounts to misconduct and an advocate may be punished.
3. Misappropriation
When an advocate collects money from his clients for court purposes and misuses it is called as misappropriation which amounts to professional misconduct.
Case: D.S Dalal v. State Bank of India[6]
In this case there was a complaint against an advocate that he misappropriated the amount paid to him towards the filing of suit and professional fees. The advocate pleaded that the suit papers were misplaced by the High Court Registry. It was duly established that the suit papers were returned to the advocate for removing objections but the advocate did not refile the suit for a long time. The Disciplinary Committee found him guilty of misappropriation of money paid to him by his client and therefore, punished him for professional misconduct.
Case: L.C Goyal v. Suresh Joshi[7]
In this case the advocate misappropriated the money received as court-fee.
He was held guilty of professional misconduct.
4. Contempt of Court and Improper behavior before Magistrate
An advocate must respect the court and maintain the dignity. Making of false allegations against the judicial officers amounts to gross misconduct.
5. Furnishing false information
Furnishing false information amounts to ‘professional misconduct’.
Case: Emperor v. K.C.B A Pleader[8]
In this case certain tins of ghee were seized by Municipal authorities on being adulterated and kept under the custody of a Marwari. The advocate falsely told the Marwari that the Sub-Divisional Office had ordered that the tins to be handed over the owner.
The advocate was held guilty of misconduct.
6. Appearing for both the sides
An advocate is under a duty to do his best to protect the interest of his clients. He must not represent conflicting interest.
7. Giving Improper Advice
Advocacy being a noble profession, an advocate must give his clients the benefit of his learning, talent and judgment. An advocate must give his proper advice if he is unable to take up the brief he should advice the client to consult another counsel but should not give improper advice.
Improper advice amounts to misconduct.
Conclusion
Legal Profession is an epochal in its nature. Bar Council of India plays a vital role in enacting pandect. It must regularly monitor and accordingly bring about amendments in professional ethics with changing the aura of the society.
