PROFESSIONAL MISCONDUCT BY ADVOCATES  AND DISCIPLINARY PROCEEDINGS

Every profession has to follow certain rules of conduct. Advocates, being a noble profession, have also to follow highest standards of conduct. Before the enactment of  Advocates Act, 1961 the disciplinary control of advocates was vested in respective High Courts. After enactment of Advocates Act, 1961, power to take disciplinary action against advocates vests in State Bar Council and Bar Council of India.

What is misconduct ?

Misconduct has not been defined under the Advocates Act, 1961. Disciplinary proceedings can be initiated for “professional misconduct” as well  “other misconduct”.  Thus, disciplinary proceedings can be initiated even for misconduct which are not connected with the profession. For example disciplinary proceedings can be initiated for criminal conviction which involve defect of character.

 Section 49 (1) (c) of the Advocates Act, 1961 empowers Bar Council of India to make rules on the standards of professional conduct and etiquette to be observed by advocates. The Bar Council of India has enacted rules regarding the same under Chapter III of Bar Council of India Rules. These rules are not exhaustive as no rules can envisage all types of misconducts.

The Supreme Court in N. G. Dastane Vs. Shrikant S. Shivde (2001) 6 SCC 135   noted that misconduct has not been defined in the Advocates Act, 1961. Section 35 of the Advocates Act shows that misconduct referred therein is of much wider import.

The Supreme Court in Noratanal  Chouraria Vs. M. R. Murali (2004) 5 SCC 689 observed that misconduct, interalia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which however, is, wide enough to include wrongful omission or commission whether done or omitted to be done intentionally.

Relevant Provisions under Advocates Act, 1961

Section 35 empowers the State Bar Council to entertain a complaint for initiation of disciplinary proceedings. The State Bar Council after receiving the compliant refers the same to Disciplinary Committee if there are reasons to believe that an advocate is guilty of professional or other misconduct. The Disciplinary Committee has to follow principles of natural justice and a notice has to sent to the concerned advocate and Advocate General of the State.  A date is fixed for hearing. The Disciplinary committee after hearing the concerned advocate and Advocate General may dismiss the complaint, reprimand the advocate, suspend the advocate from practice for such period as it may deem fit or remove the name of the advocate from state roll.

Any such proceedings have to determined expeditiously and in each case within one year failing which such proceedings are transferred to Bar Council of India.

Section 36 empowers the Bar Council of India to entertain a complaint for initiation of disciplinary proceedings. After receiving complaint, if there are reasons to believe, the Bar Council of India also refers the complaint to its Disciplinary Committee. The Disciplinary Committee mutatis mutandis follows procedure as provided under Section 35.

A person aggrieved by order of Disciplinary Committee of the State Bar Council or the Advocate General of State can file appeal to Bar Council of India within 60 days.

A person aggrieved by the order of Disciplinary Committee of Bar Council of India or Attorney General or Advocate General may file an appeal within sixty days  before the Supreme Court under Section 37.

Professional Misconduct and Contempt of Court

The Supreme Court in In Re: Vinay Mishra  (1995 ) 2 SCC 584,  has held that that power to initiate contempt proceedings under Article 129 is independent of Advocates Act, 1961. The Supreme Court has dispelled the contention that  power to take disciplinary actions under Advocates Act, 1961 exclusively lies with Bar Councils.

The Supreme Court overruled Vinay Mishra (Supra ) in Supreme Court Bar Association Vs Union of India (1998 ) 4 SCC 409. The Supreme Court held that it can not in exercise its jurisdiction under Article 142 read with Article 129 of the Constitution while punishing for contempt of Court suspend license of an advocate to practice. The Supreme Court observed that contempt jurisdiction of the Supreme Court can not be confused with appellate jurisdiction under Section 38 of the Advocates Act, 1961.

The Supreme Court in R. K, Anand Vs. Registrar Delhi High Court (2009 )8SCC106  held that power of  High Court to issue direction for protecting the purity of proceedings of the court is different from disciplinary proceedings under Advocates Act, 1961. The Supreme Court also issued direction for framing of rules under Section 34 of the  Advocates Act, 1961.

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