Professional And

Other Misconduct
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.
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.
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
• Disowning allegiance to the court
• Moving application without informing that a similar
application has been rejected by another authority
• Suggesting to bribe the court officials
• Forcing the prosecution witness not to say the truth.
To understand the scope and implication of the term
‘misconduct’, the context of the role and responsibility of an
advocate should be kept in mind.
Misconduct is a sufficiently wide expression, and need not
necessarily imply the involvement of moral turpitude.
Supreme Court has opined that the word “misconduct” has no
precise meaning, and its scope and ambit has to be construed
with reference to the subject matter and context wherein the
term occurs.
In the context of misconduct of an advocate, any conduct that
in any way renders an advocate unfit for the exercise of his
profession, or is likely to hamper or embarrass the
administration of justice may be considered to amount to
misconduct, for which disciplinary action may be initiated.

Darling J, defined the expression professional misconduct in, In

re A Solicitor ex parte the law society as, It is shown that
the advocate in the pursuit of his profession has done some
thing with regard to it which would be reasonably regarded as
disgraceful or dishonourable by his professional brethren of
good repute and competency, then it is open to say that he is
guilty of professional misconduct.
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.
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; 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.
Provisions in Advocates act 1961
It envisages for the establishment of Bar Council of India and
State Bar Councils with various disciplinary committees to deal
with misconduct of the advocates.
Chapter V containing sections 35 to 44 deals with the conduct
of the advocates. It provides for punishment for advocates for
professional and other misconduct and disciplinary powers of
the Bar council of India. In order to attract the application of
section 35 of the advocates act the misconduct need not be
professional misconduct alone.
The Code of Conduct Prescribed For Advocate
Section 49 of the advocates act 1961 empowers the Bar Council of
India to frame rules regulating standards of professional conduct.
Accordingly various duties are prescribed for the advocates some of
them are highlighted below.

No advertising or soliciting work, it is against an advocate’s code of

ethics to solicit or advertise work and amounts to a misconduct on the
part of the advocate. Both direct and indirect advertising is
prohibited. An advocate may not advertise his services through
circulars, advertisements, touts, personal communication or
interviews not warranted by personal relations. Similarly, the
following forms of indirect advertising are prohibited:

(i) by issuing circulars or election manifestos by a lawyer with his

name, profession and address printed on the manifestos, thereby
appealing to the members of the profession practising in the lower
courts who are in a position to recommend clients to counsel
practising in the HC.
(ii) canvassing for votes by touring in the province or sending out his
clerk or agents to the various districts, which must necessarily mean
directly approaching advocates practicing in subordinate courts.
Further, the signboard or nameplate displayed by an advocate should
be of reasonable size. It should not refer to details of an affiliated by the
advocate i.e. that he is or has been president or member of a bar
council or of any association, or he has been a Judge or an Advocate-
General, or that he specializes in a particular kind of work, or that he is
or was associated with any person or organization or with any particular
cause or matter.

Not to demand fees for training; An advocate is restrained from

demanding any fees for imparting training to enable any person to
qualify for enrolment.

Not use name/services for unauthorized practice; An advocate

may not allow his professional services or his name to be associated
with, or be used for any unauthorized practice of law by any law agency.
Not to enter appearance without consent of the advocate already
engaged: an advocate is prohibited from entering appearance in a case
where there is already another advocate engaged for a party except with the
consent of such advocate. However if such consent is not produced, the
advocate must state the reasons for not producing it, and may appear
subsequently, only with the permission of the court.

Duty to opposite party:- While conducting a case, a lawyer has a duty to be

fair not only to his client but also to the court, and to the opposite party. An
advocate for a party must communicate or negotiate with the other parties
regarding the subject matter of controversy, only through the opposite party’s
advocate. If an advocate has made any legitimate promises to the opposite
party, he should fulfill the same, even if the promise was not reduced to
writing or enforceable under the rules of the court.

Duties of an advocate towards his client: The relationship between a

lawyer and a client is highly fiduciary and it is the duty of an advocate
fearlessly to uphold the interests of the client by fair and honourable means
without regard to any unpleasant consequences to himself or any other
person.
The Supreme Court has, in some of its decisions, elucidated on
the concept of ‘misconduct’, and its application. 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 favourable 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.
In another case, Noratanman Courasia v. M. R. Murali the
Supreme Court explored the amplitude and extent of the words
“professional misconduct” in Section 35 of the Advocates Act.
The facts of the case involved an advocate (appearing as a
litigant in the capacity of the respondent, and not an advocate
in a rent control proceeding) assaulted and kicked the
complainant and asked him to refrain from proceeding with the
case.
The main issue in this case was whether the act of the
advocate amounted to misconduct, the action against which
could be initiated in the Bar Council, even though he was not
acting in the capacity of an advocate.
It was upheld by the Supreme Court that a lawyer is obliged to
observe the norms of behavior expected of him, which make
him worthy of the confidence of the community in him as an
officer of the Court.
Therefore, inspite of the fact that he was not acting in his
capacity as an advocate, his behavior was unfit for an
advocate, and the Bar Council was justified in proceeding with
the disciplinary proceedings against him.
In N.G. Dastane v. Shrikant S. Shind, where the advocate of
one of the parties was asking for continuous adjournments to
the immense inconvenience of the opposite party, it was held
by the Supreme Court that seeking adjournments for
postponing the examination of witnesses who were present
without making other arrangements for examining such
witnesses is a dereliction of the duty that an advocate owed to
the Court, amounting to misconduct.
It may be noted that the scope of “misconduct” is not restricted by
technical interpretations of rules of conduct. This was proven
conclusively in the case of Bar Council of Maharashtra v. M.V.
Dahbolkar.
The facts under consideration involved advocates positioning
themselves at the entrance to the Magistrate’s courts and rushing
towards potential litigants, often leading to an ugly scrimmage to
snatch briefs and undercutting of fees.
The Disciplinary Committee of the state Bar Council found such
behavior to amount to professional misconduct, but on appeal to
the Bar Council of India, it was the Bar Council of India absolved
them of all charges of professional misconduct on the ground that
the conduct did not contravene Rule 36 of the Standards of
Professional Conduct and Etiquette as the rule required solicitation
of work from a particular person with respect to a particular case,
and this case did not meet all the necessary criteria, and such
method of solicitation could not amount to misconduct.
This approach of the Bar council of India was heavily
reprimanded by the Supreme Court. It was held that restrictive
interpretation of the relevant rule by splitting up the text does
not imply that the conduct of the advocates was warranted or
justified.
The standard of conduct of advocates flows from the broad
cannons of ethics and high tome of behavior. It was held that
“professional ethics cannot be contained in a Bar Council rule
but in new canons of conscience which will command the
member of the calling of justice to obey rules or morality and
utility.”
Misconduct of advocates should thus be understood in a
context-specific, dynamic sense, which captures the role of the
advocate in the society at large.
Instances of Misconduct
Legal Practioners act 1879 has not defined the word
Misconduct. The word Unprofessional conduct is used in the act.
Even the Advocates Act 1961 has not defined the term
misconduct because of the wide scope and application of the
term. Hence to understand the instances of misconduct we
have to rely on decided cases. Some of the instances of
Professional misconduct are as follows,

1) Dereliction of duty
2) Professional negligence
3) Misappropriation
4) Changing sides
5) Contempt of court and improper behaviour before a
magistrate
6) Furnishing false information
7) Giving improper advice
8) Misleading the clients in court
9) Non speaking the truth
10) Disowning allegiance to court
11) Moving application without informing that a similar
application has been rejected by another authority
12) Suggesting to bribe the court officials
13) Forcing the procecution witness not to tell the truth.
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.
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[AIR 1979 SC 281]
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[AIR 1965 Mys. 28]
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[AIR 2001 SC 2028]
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[AIR 1993 SC 1608]
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[AIR 1999 SC 2222]
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[AIR 1935 Cal. 547]
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.
The authority to punishment for
professional misconduct -
Section 35 of the Advocate Act provides that on receipt of a
complaint or otherwise if 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.
Section 9 of the Act empowers the State Bar Council to constitute
one or more Disciplinary Committees.
According to section 35(2) of the Advocate Act, 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 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 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.
 Section 35 of Advocate Act 1961 provides for punishment for
professional misconduct or other misconduct. In exercise of powers
under Section 35 of the Advocate Act, on receipt of a complaint
against an advocate or suo moto, if the State Bar Council has reason
to believe that any Advocate on its roll has been guilty of
professional or other misconduct, disciplinary proceedings may be
initiated against him.
The Disciplinary Committee of the State Bar Council is empowered to
inflict punishment including removal of his name from the rolls of the
Bar Council and suspending him from practice for a period deemed fit
by it.
However, an appeal against the order of the Disciplinary Committee
may be preferred to the bar Council of India under Section 37 and
thereafter to the Supreme Court of India against the order of the
Bar Council of India under the section 38 of Advocate Act, 1961.
The Advocate Act provides remedies against the order of
punishment. An advocate aggrieved by the order of 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 virtue of this Section the Disciplinary Committee of Bar
Council of its own motion or otherwise review any order, within
60 days of the date of 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.
The procedure for making review application is given in chapter
II, Part VII of the rules of the Bar Council of India. It is in the
form of petition duly signed and supported by an affidavit
accompanied by prescribed fee and certified copy of the order,
complained of.
Rules For Review under Section 44 of the Act as follows

(1) An application for review under Section 44 of the Act shall

be in the form of a petition duly signed and supported by an
affidavit accompanied by the prescribed fee and filed within 60
days from the date of the order sought to be reviewed.
(2) Every such application shall be accompanied by :
(a) certified copy of the order complained of.
(b) five additional copies of the application, affidavit and the order; and
(c) if there are more respondents than one, as many additional true copies as may
be necessary.
(3) Every such application shall set out the grounds on which the Review is sought and
shall further state whether any proceeding in respect thereof was filled and is still pending or
the result thereof as the case may be.
(4) If a Disciplinary Committee of Bar Council does not summarily reject the application
under Section 44 of the Act, or wishes to exercise its powers under Section 44 suo motu,
the secretary of a Bar Council shall issue as nearly as maybe in the Form, notice to the
parties and to the Advocate-General concerned or the Additional Solicitor-General of India
in the case of the Bar Council of India.
 (5) (1) If after the hearing referred to in rule 4, the Disciplinary Committee of a
State Bar Council does not dismiss the application, and decides that the
application for review should be allowed, the copy of the order along with the
relevant record shall be sent to the bar council of India for approval.
(2) If the Bar Council of India approves the order of the Bar Council, the
Disciplinary Committee of the State Bar Council shall communicate the order
to the parties, if the bar council of India does not approved it, the Disciplinary
Committee of the State Bar Council shall make its order dismissing the
application and inform the parties.
(6) The decision of the Disciplinary Committee of the Bar Council of India
on an application for Review of its order shall be communicated to the parties.
(7) In the proceedings under this chapter, unless the
disciplinary committee of the State Bar Council or the Bar
Council of India, as the case may be otherwise decides, the
parties may appear by the Advocate who shall file a
Vakalatnama signed by the party.
2) Revision Section. 48-A (Amendment 1964 )

1) The Bar Council of India may, at anytime 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, for the purpose of satisfying itself as to the legality or propriety
of such disposal and may pass such orders in relation thereto as it
may think fit.

2) No order which prejudicially affects any person shall be passed

under this section without giving a reasonable opportunity of being
heard.
3) Application for Stay -

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

made under Section 37(Appeal to the Bar Council of India) or
Section 38(Appeal to the Supreme Court) 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.
4) Appeal -

A) Appeal to the Bar Council of India

B) Appeal to 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 so as to prejudicially
affect the person aggrieved without giving him a reasonable opportunity of being
heard.
B) Appeal to 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 Appeal. The Appeal memo in a prescribed form to be accompanied with the
certified copy of the order appealed against signed by the appellant with a
prescribed fee within 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
preferred to the Bar council of India and an appeal against the order of the Bar
council of India may be preferred to the Supreme Court.
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 a restricted Appeal. It is not an appeal on law alone but also
on fact. Supreme Court must in all cases go into the matter to
satisfied itself that justice has been done by the Disciplinary
Committee Committees. The Supreme Court possesses under
the constitution special power of review and futher 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
Disciplinary Committee of BCI: Role &
Objective
The profession of law is the noblest of all. After the Britishers visited
India, various efforts were made to streamline the legal profession in
India. The fourteenth Law Commission report presided over by Mr M.C.
Setalvad, then Attorney-General of India, in its Reform of Judicial
Administration supported the formation of the All India Bar Committee,
to form a coordinated all India Bar, as well as the establishment,
composition and functions of the state and All India Bar Councils.
Before the existence of the disciplinary committee, any complaint
about professional misconduct or other misconduct against any
advocate was to be made to the High court under section 10 of the
Legal Practitioners Act.
The Bar Council of India is a statutory body that
regulates and represents the Indian Bar. It also
prescribes a standard of professional conduct,
prescript and has disciplinary jurisdiction over the
bar. The Bar Council of India has various committees
within it to maintain the nobility of the profession,
which makes recommendations to the Council. The
members of these committees are elected from amongst
the members of the Council. The Advocates Act
mandates the creation of a Disciplinary Committee
under section 9 of the Advocates Act, 1961.
 Disciplinary Committee of the Bar Council of India

The Advocates Act 1961 has conferred powers on the

disciplinary committee of the Bar Council of India to
conduct an inquiry in cases of complaints of professional
misconduct or any other misconduct against any advocate
referred to it, to conduct an enquiry of the cases before
itself, to hear appeals and order stay and review its own
orders. It has the power to make any such order as to
costs of any proceedings before it as it may deem fit. Any
such order shall be viable as it were an order of the
Supreme Court.
 Formation of Disciplinary Committee
Following from Section 9 of Advocates Act 1961, a Bar
Council shall constitute one or more disciplinary
committees, each shall consist of three members, out of
which two shall be persons elected by the Council from its
members and the third member shall be a person amongst
advocates who possess the qualifications specified in the
proviso of sub-section (2) of section 3 and who is not the
member of the Council. And the senior-most advocate
amongst the members of a disciplinary committee shall be
the Chairman of the committee.
 Professional misconduct

Section 35 of the Advocates Act, 1961 defines Professional

Misconduct.
Black's Law Dictionary, Sixth Edition defines 'professional
misconduct’ as
“A transgression of some established and definite rule of
action, a forbidden act, a dereliction from duty, unlawful
behaviour, willful in character, improper or wrong
behaviour', its synonyms are misdemeanour, misdeed,
misbehaviour, delinquency, impropriety, mismanagement
offence, but not negligence or carelessness.”
Conduct is a behaviour with good manners and treatment
which is shown to others, misconduct represents that the
person is misbehaving with others, and when it is by a
professional it can be seen as ‘ Misconduct’.
Here it is important to quote the heading of SC in the
case of State of Punjab v. Ram Singh,
'misconduct' may involve moral turpitude, it amounts to
improper or wrong behaviour, unlawful behaviour, willful in
character, a forbidden act, a transgression of established and
definite rule of action or code of conduct but a not mere
error of judgment, carelessness or negligence in
the performance of the duty; the act complained of
bears forbidden quality or character.
The legal profession has some set standards of conduct,
professional ethics (laid done by Bar Council of India) to which
an advocate is bound to follow befitting the profession. In the
case of V.C Ranga Durai v. D. Gopalan, the Supreme Court
specified that an advocate who is entrusted with a brief must
follow the norms of professional ethics and must also protect
the best interest of their clients. Section 35 of the Advocates
Act, 1961 states that an advocate may be punished for
professional misconduct or other misconduct. Section 35
empowers the Bar Council and the State Bare Council that if
there is proven misconduct then both council has the power to
punish such advocate.
4.1 Professional Negligence: an advocate is expected to exercise
reasonable skills and prudence and should not be negligent. In order to
constitute misconduct, the negligence must be suppression of truth or
deliberate misrepresentation of facts. Mohd. Ismail v. Balarathna, the
constitutional court held that if an advocate neglects to furnish requisite
documents or material papers despite repeated adjournments, it should
amount to misconduct.

4.2 Misappropriation: In the case of N.G Dastane v. Shrikant S.

Shivde, the Supreme court held that seeking repeated adjournments for
postponing examination of witnesses present in the court amounts to
misconduct and an advocate may be punished for that matter.
In a situation where an advocate collects money from their clients for
court fee and misused it, this is also misappropriation and it amounts to
professional misconduct.
4.3 Improper behaviour before Magistrate: An advocate is
required to respect the court and maintain its dignity. Making any
false allegation against the judicial officers also amounts to gross
misconduct.
4.4 Furnishing False Information: in Emperor v. K.C.B.A
Pleader the constitutional court held the advocate guilty of
misconduct for furnishing false information to Marwari.
4.5 Appealing for both sides: An advocate is duty-bound to
protect the best interest of their clients. He must not represent
conflicting views.
4.6 Giving Improper Advice: Advocacy is a noble profession, so
an advocate is under the impression of a knowledgeable person, he
is must benefit the client by his learning, talents and judgment. He
must provide is the proper and best advice to his clients.
4.7 Two Test Theory: to determine whether any particular act is
professional misconduct or not, we can proceed with ‘two test theory’.
In Re an advocate, it was held that.
1.themisconduct is such that he must be regarded as unworthy to
remain a member of the Honorable profession.
2.The misconduct is such that the advocate must be regarded as unfit
to be entrusted with the duties that an advocate is called upon to
perform.
3.Roles, Powers and Objective of the Disciplinary Committee of
the Bar Council of India
Section 42 of the Advocates Act 1961, provides the roles of the
Disciplinary Committee of a Bar Council. The provisions of this Section
are applicable to the State Bar Council as well as the
Bar Council of India.
5.1 Powers of the disciplinary committees:
Section 42 of Advocates Act, 1961, provides that the
disciplinary committee of a Bar Council shall have the same
powers and roles as are vested in a civil court under the Code
of Civil Procedure, 1908, with respect to 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; issuing commissions for the
examination of witnesses or documents and any other matter
which may be prescribed.
Any advocate who is suspended from practice by the
disciplinary committee means that the advocate is
debarred from practising in any court or before any
authority or persons in India. The disciplinary
committee of a State Bar Council may of its own
motion or otherwise review any order passed by its
own self, but no such order shall be effected unless
it has been approved by the Bar Council of India.
5.2 Power to enquire and to withdraw:
If on receipt of a complaint or on its own motion, the Bar
Council of India has reason to believe that any advocate on the
roll whose name is not entered on any state roll, had been
guilty of professional or other misconduct, it shall refer the case
of such advocate for disposal to its disciplinary committees, The
committee may also of its own motion, conduct an enquiry
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.
5.3 Power to hear appeals and order stay:
Any person aggrieved by the order of the disciplinary committee of
a State Bar Council under section 35 of Advocates Act, 1961 may
within sixty days of the date of the communication of the order to
him, may appeal before the Bar Council of India. Every such appeal
is to be heard by the disciplinary committee of the Bar Council of
India which may pass any such order which it deems fit.
In the case of Adi Phirozshah Gandhi v. H.M. Seervai, The
disciplinary committee of the Bar Council of India in its own order
allowed an appeal filed by the advocate-general under section 37
of the Advocates Act, 1961. The disciplinary committee of the Bar
Council of India suspended the advocate for a year over-ruling its
own decision. The same was upheld by the supreme court of India.
5.4 Power of Review:
Section 44 of Advocates Act, 1961 confers powers of review on
the disciplinary committee of a Bar Council by its own motion or
otherwise. However, no order or review of the disciplinary
committee of the state Bar Council has any effect unless it has
been approved by the Bar Council of India. In O.N. Mahindroo
v. Dist. Judge, Delhi, the Supreme Court upheld the view of
the Bar Council of India that the Bar Council of India itself has
no power to review any order made by its disciplinary
committee on appeal. But the Bar Council can rather refer the
matter to the disciplinary committee matters for
reconsideration.
The power of revision is expressly granted to the disciplinary
committee of the Bar Council of India which may on its own
motion or otherwise review any order passed by itself. The word
’otherwise’ used under section 44 of Advocates Act, 1961, is
very wide to include a case referred by the Bar Council for
review. The court was of the view that since disciplinary
proceedings against a lawyer will not only involve the particular
lawyer but the prestige of the legal profession as well, that is
why the powers of review of the disciplinary committees should
be interpreted in a wider sense so as to enable the disciplinary
committee to exercise its powers in required cases, for or
against an advocate even after the matter had been head by
them.
http://www.legalservicesindia.com/article/1665/Professional-mis
conduct-of-lawyers-in-india.html
https://www.srdlawnotes.com/2016/11/remedies-against-order-o
f-punishment.html
https://www.legalarmor.co.in/post/disciplinary-committee-of-bci-
role-objective