An Open Access Journal from The Law Brigade Publishers 239

A CRITICAL ANALYSIS OF PROFESSIONAL MISCONDUCT

BY ADVOCATES IN INDIA

Written by Ishaan Tyagi

5th Year BA LLB Student, Amity Law School, Noida, India

ABSTRACT

Professional misconduct in law basically refers to the dishonourable or disgraceful conduct by

an advocate. It can be defined as the behaviour outside the limits of what is observed as worthy
or acceptable by the governing figure of a profession. The author through this paper aims to
provide an overview of the topic relating to the issue of ‘Professional Misconduct’ in the legal
profession. The paper covers the types and instances of professional conduct, duties of
advocates, the prescribed code for advocates, and certain landmark judgements related to the
topic. The paper discusses the instances amounting to professional misconduct and the
Advocates Act of 1961 along with the code of conduct prescribed by the Act for the legal
practitioners. The author further mentions the various duties and restrictions that have been
imposed on the Advocates by the Act of 1961. The paper studies the role played by the various
significant judgements in understanding and developing laws and Acts relating to the issue of
Professional Misconduct.

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 240

INTRODUCTION

“Professional Ethics cannot be contained in a Bar Council rule nor in traditional cant in the
books but in new canons of conscience which will command the members of the calling of
justice to obey rules or morality and utility.”

- Justice Krishna Iyeri

Advocacy is an honourable and righteous profession. An advocate may be regarded amongst

the most privileged, accountable and scholarly members of the society. Occupying such a high
stature in the society, an advocate may be regarded as a role model for the members of the
society, thus, the acts of an advocate must always be regulated. Professional ethics include the
corporate and personal levels of behaviour which are expected of a professional. Thus, every
profession requires the practising professionals to comply to certain principles or ethics that
are a part of that profession. ‘Professional misconduct’ in simple terms refers to improper
conduct. It may be done by an advocate in order to fulfil his selfish desires or make ends meet.
Any act which leads to a dispute with the profession or makes the advocate unfit for the
profession, amounts to Professional Misconduct. In simple terms, any act barring an advocate
to continue as a professional. Clearly, legal profession is not a business or trade, rather it is a
noble, courteous, and decontaminated profession. Thus, acts like corruption and deception must
not be encouraged in such a profession, instead the members of the profession must put in their
best efforts to obtain justice for their clients. The conduct of the members of the profession
plays a vital role in determining the trustworthiness and stature of the profession.

Professional Misconduct includes the following situations-

• Betraying the trust of a client

• Practising fraud through certain means
• Deceiving the court
• Deceiving the opposing party or their counsel

In State of Punjab vs Ram Singhii, the Supreme Court discussed that ‘Professional
Misconduct’ may involve:

• Wrongful or unacceptable behaviour

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 241

• Behaviour that is unlawful according to law

• Immorality
• Carelessness in discharge of duty
• An act forbidden by law
• Or transgression
Chapter V of the Advocates Act of 1961 deals with the conduct of the Advocates. The chapter
further describes the provision for punishment for any type of misconduct by the advocates.
According to Section 35 (1) of the Act, when the State Bar Council has a basis to believe that
an advocate engaged in any act that makes him guilty of any sort of misconduct, they shall
forward the matter to the disciplinary committee for disposal.

Though no exact definition is provided by the Bar Council or the Act for professional
misconduct, thorough punishments have been prescribed for the commission or omission of
such an act by any person registered as an advocate. The following points can be used to explain
the instances of Misconduct by an Advocate-

1. Non-performance of Duty
This situation is also known as the Dereliction of one’s duty. It may be explained as that
situation wherein an advocate either hands over the brief of the case to some other advocate or
he abandons the client and fails to discharge the required duty. Such a transfer is regarded as
unprofessional. However, it is not a misconduct if the advocate does so after seeking the client’s
consent.

• V.C Ranga Durai vs D. Gopalaniii

It was clarified by the Apex Court that it is an obligation on the lawyer entrusted with a case
and its brief to follow the principles of professional ethics and consequently protect the client’s
interests. The failure to do so would be a Professional Misconduct.

2. Negligence on behalf of the Professional

It is expected of an advocate to exercise necessary skills and knowledge while going forward
with the case. Moreover, it is expected of him to not be careless or negligent. However,
professional misconduct would be constituted in case there is negligence on the part of the
advocate accompanied by the fabrication of facts or the nondisclosure of truth.

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 242

• Mohd. Ismail vs Balarathnaiv

In this case, the Supreme Court noted that it would lead to misconduct in case a lawyer fails to
furnish the necessary documents required to proceed with the case despite of recurrent
adjournments.

• N. Dastane vs S. S. Shivdev
The Supreme Court, in this case, clarified that seeking of recurrent adjournments by an
advocate with an intention to postpone or prevent the examination of witnesses who are a a
part of the case amounts to professional misconduct. The Court made it clear that an advocate
must be punished for the same.

3. Misappropriation
Misappropriation can be defined as that scenario wherein money is acquired by an advocate
from his client for purposes relating to the case, however, the advocate misuses the acquired
funds for purposes other than those related to the case. Misappropriation is a type of
misconduct.

• D. Dalal vs SBIvi
Here, an advocate was accused of misappropriating the amount acquired by him from the client.
The amount was collected for the purpose of filing of a suit and the rest was the professional
fees. The advocate blaming the High Court claimed that the High Court registry had lost the
suit papers. However, it was found that the registry had returned the suit papers to the lawyer
for the removal of objections and it was the advocate who had not refiled the suit for a
prolonged period. A disciplinary committee was set up against the advocate. The committee
found the advocate guilty of embezzlement of funds paid by the client and thus, punished the
advocate for misconduct.

4. Contempt of Court and Inappropriate behaviour before the Magistrate

Contempt of Court may be described as an offence wherein an advocate is disrespectful or
disobedient towards either the court of law or any of its officers by ways of behaviour that
disobeys or is against the justice, authority and dignity of the court. It is an advocate’s duty to
respect and maintain the dignity of the court. False allegations made against any officer of the
judiciary amounts to misconduct. There are two types of contempt: improper behaviour
towards the judicial members in the courtroom or will fully disobeying the courts order.

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 243

In 2010, M.V. Jayarajan, leader of the Communist party of India, was sentenced to six months
in prison for contempt of court after he passed comments criticising the Kerala High Courts
decision to ban meetings of people in public places. His sentence was however reduced to four
months after an appeal to the Apex Court.vii

5. Furnishing False Information

The intentional furnishing of false information by an advocate to a public servant amounts to
misconduct. The information may either be regarding an offence which has already been
committed or it may be about the commission of an offence and preventing the commission of
such an offence. If the advocate knows or has a reason to believe that the information being
furnished is false, then he shall be charged for such professional misconduct.

• Emperor vs K.C.B A Pleaderviii

In this case, the Municipal authorities seized certain boxes of ‘ghee’ as they were informed that
the ‘ghee’ was being adulterated. The authority ordered the boxes to be kept under the custody
or supervision of Mr. Bazrang Marwari. Mr. Bazrang Marwari was falsely informed by the
advocate that the Municipal authorities had ordered that the boxes were to be restored with the
rightful owner. The information put through by the advocate was false, thus, he was guilty and
action for misconduct was taken against him.

6. Changing sides
An advocate is not allowed to switch parties during the course of the case. All advocates are
under the obligation to do their best towards the case in order to safeguard the client’s interests.
He is not allowed to represent the interests of conflicting parties. In simple terms, an advocate
cannot represent both parties to the case. The changing of sides or the safeguarding of interests
of both the parties to the case amounts to gross misconduct by the advocate responsible.

• State vs Lalit Mohan Nanda

This case arose as a result of an enquiry made against Mr. Nanda as he had appeared against a
client who had engaged him for the same case. The issue arose between stepbrothers and was
related to a family dispute over the possession of a certain piece of land. Mr. Nanda appeared
for one of the brothers acquiring confidential instructions and knowledge about his side of the
case. Later, he was engaged by the other brother for the same case and successfully derived the

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 244

decree in his favour. Thus, as he had appeared for both the parties to the case, action was taken
for professional misconduct against him.

7. Giving inappropriate advice

Advocacy is a righteous, noble, and honourable profession thus, it is the duty of an advocate to
provide his clients with the best of his knowledge, judgement and talent. An advocate must
always give proper advice to a client consulting him. In case the advocate is not able to take up
the client’s case, he must advise him to consult some other counsel rather than giving improper
advice that may harm the client in any way. The imparting of improper or inappropriate advice
by the advocate amounts to misconduct. These are certain acts which amount to professional
misconduct. However, there are several other ways that can lead to an advocate being charged
with professional misconduct. Other forms of professional misconduct include:

• Stating made up facts or lies to the client

• Misleading the courts with a view to deceive
• Abandoning allegiance to the courts
• Moving an application even after a similar application has been declined by some other
authority
• Suggesting or trying to bribe the officers of the court
• Pressurising the witnesses to not state the truth or state fabricated facts
• Coercing colleagues
• Forgery or fraud.ix

ADVOCATES ACT, 1961

The Chapter V of the Advocates Act, 1961 deals with the conduct of the Advocates. Section
35 of the Act through its various provisions deals with the charges of professional misconduct
of advocates or lawyers in India.

When an advocate is found culpable for professional misconduct, the case shall be referred to
the State Bar Council’s Disciplinary committee. It is then the disciplinary committee’s duty to
fix a date on which the issue must be taken up. It also must issue a show cause notice to both,
the Advocate and the Advocate General of the State. On the fixed date, the committee after
hearing both the parties may take the following actions:

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 245

• Either dismiss the complaint against the advocate if it feels that the issue is not too
grave, or direct the filing of proceedings at the same place where the proceeding was
commenced by the State Bar Council
• Reprimand or reprove the advocate for the charges
• As it deems fit to the Committee, suspend, or charge the advocate for an appropriate
period of time
• Withdraw the advocates name from the state roll.

PRESCRIBED CODE OF CONDUCT FOR ADVOCATES

Misconducts are of limitless varieties. Thus, it is necessary that the expression ‘Misconduct’
must be acknowledged in a broad manner, so much so that the meaning of the term comes
under the purview of natural law, leaving no scope of justification for regulating their natural
meaning of the expression. The Advocates Act through Section 49, provides the Bar Council
of India the power to form and shape standards and rules regarding professional misconduct.x

1) According to the Act, no advocate has the right to advertise or solicit his practice as it
violates the code of ethics of the Advocates. Both, indirect and direct means of advertising are
prohibited. Further, he is not allowed to advertise though personal communications, interviews,
or circulars.

The following ways of indirect advertisement by the advocate are prohibited:

• The issuing of election manifestos or circulars with the advocates name, address and
profession mentioned on such manifestos, which in a way is appealing to the members
of the same profession practising in the subordinate courts to endorse clients to the
counsel.
• Campaigning for votes through tours within the province.
• Sending out his agents or clerks to various districts within the state to directly approach
advocates practicing in the lower courts.
• The nameplate or signboard exhibited by an advocate should not be of an unreasonable
size. Further, it should not mention the details affiliated with the advocate, for example,
that he is or was a member or the president of the Bar Council or of any other such

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 246

association, or if he ever was an Advocate General or a Judge, or even his own

specialisation.
2) He is also not permitted to demand money for training purposes consequently enabling an
aspiring lawyer to meet the requirements for enrolment into the State Bar Council.

3) He is not allowed to associate his services or name with any unofficial practices or purposes
related to law or any agency of law.

4) He is forbidden from entering appearance in any case wherein an advocate has already been
engaged by a party. He can do so after seeking the consent of the advocate engaged. However,
if the consent of the advocate is not produced in court, the advocate has to state an appropriate
reason for not being able to produce the same. He may appear afterwards, only with the consent
of the court.

DUTIES OF AN ADVOCATE

There are various cannons of etiquette and conduct that have been adopted in order to conduct
the working of members engaged in the profession. Thus, there are certain duties that have
been imposed over the advocates in order for smooth and righteous working within the
profession.xi The following are certain duties that are expected of a legal practitioner:

i. Duty towards opposite party

- While directing the case, the advocate has an obligation to be fair and respectful to the
court and the opposite party and not only to his own client.
- He must negotiate and communicate with the other parties, the subject matter and other
details relating to the controversy, but only through the advocate of the other party.
- If the advocate made any promises to the opposite party, he should righteously fulfil
the same, even in the event of the promise not being reduced to writing.
- He must by no means try to harm the opposite party or his Advocate, within or outside
the premises of the Court.

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 247

ii. Duty towards his client

- The relationship between the client and the Advocate is highly fiduciary. The lawyer
must fairly with consideration, estimate the value of the legal services and advices
involved, not charging above what is estimated.
- Further, it is the duty of the Advocate to courageously support the interests of the client
through honourable and fair means.
- He should not withdraw from a case which has already been accepted by him. If he is
to so, he must provide a proper and reasonable cause to the client. After withdrawing,
he must return the fee which he earned through the case.
- An Advocate shall in no case take advantage of the confidence and trust reposed in him
by the client.

iii. Duties towards the Court

- The most important duty of an Advocate towards the court is to be honest and
respectful. He must not be disrespectful as it would amount to professional misconduct.
- He must prepare the case thoroughly before presenting the case. While presenting the
case, he must conduct the proceedings with utmost dignity and self-respect.
- He must not try to influence the court’s decisions by any improper or illegal means. He
should also not try to communicate with a Judge relating to a case which is still pending.
- The appearance of the Advocate must always be presentable, and he shall always appear
in the prescribed dress.

iv. Duty to Render Legal Aid

- Every legal practitioner shall always keep in mind that any person who is in dire need
of a lawyer is entitled to seek legal assistant despite the fact that he cannot pay an
adequate or the full amount to the lawyer.
- Free assistance to the oppressed and indigent sections of the society is amongst the most
important obligations owed by an Advocate to the society.

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 248

v. Restrictions on Employments
- An advocate is not allowed to engage personally in any other business; however, he can
be a sleeping partner in any firm involved in business. However, the nature of the
business, according to the Bar Council, must not conflict with the dignity of the
profession.
- As long as he is practicing law, he is not allowed to be a salaried employee of any
government, person, corporation or firm.
- An Advocate may continue a family business inherited by him, but he must not actively
participate in the administration of that business. Similarly, he is allowed to hold a share
in a business inherited by him, but he must not personally and actively participate in
the administration.
- An Advocate may be a Chairman or a Director of a company provided that his duties
are not executive in nature. He shall not be a Secretary or a Managing Director of a
company.

LANDMARK JUDGEMENTS

• Sambhu Yadav v/s Hanuman Khatryxii

Here, the complainant filed a complaint against an advocate enrolled with Rajasthan’s State
Bar Council. The complaint was related to bribery. According to the complaint, the counsel
while appearing in the suit, through a letter demanded Rs. 10,000 as a bribe in order to influence
the judge towards their own cause and get an order in their favour. According to the
Disciplinary Committee, the actions of the lawyer rendered him totally unfit for the profession.
The Supreme Court agreed with the judgement of the Bar Council and stated that law as a
profession is neither a trade nor a business. It is the duty of the Advocates to strengthen the
honesty and righteousness attached with the occupation and to prevent corruption with a view
to secure justice.

• Noratanmal Chaurasia v/s M. Murlixiii

Here, the Apex Court stated that the Advocates Act does not define the term ‘Misconduct’, but
misconduct pictures and includes the breach of discipline. The Advocate in this case kicked
the complainant, assaulting him, and then asked the complainant to abstain from carrying on

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 249

with the case. The Apex Court stated that it is an obligation on the lawyers to follow the norms
and rules related to behaviour. This type of behaviour was held unfit for any professional.

• Suo Motto Enquiry v/s Lal Balwanixiv

Here, the advocate opened his shoes, threw them and shouted slogans while appearing in the
Apex Court. He was charged on two grounds, disrespect, and professional misconduct. The
Apex Court found him guilty of his actions and imprisoned him for four months along with a
fine of Rs. 2000. Later, the Bar Council of India along with the Disciplinary Committee finding
him guilty of professional misconduct, ordered to remove his name from the State roll.

• BCM v/s M. Dabholkar-xv

Here, it was noted that the lawyers placing themselves at the entry point of the Magistrate’s
court to rush towards and target possible plaintiffs, mostly led to a troublesome experience for
both the parties involved. The Disciplinary Committee observed this was clearly a case of
professional misconduct. It also stated that professional ethics could not be held in a book or
ruler. Thus, misconduct relating to lawyers must be recognized in a dynamic and context
specific sense, capturing the advocate’s role towards the citizens.

• SCBA v/s UOIxvi

Amongst the vital functions of the State Bar Council in consideration to the conduct of the
advocates is the taking up of complaints relating to advocates. If the States’s Bar Council has
any hint to suspect an advocate of misconduct, then it is its duty to refer the case to the State
Bar’s Disciplinary Committee for clearance. In case the Council even after receiving
information from the Court does not begin proceedings against the advocate, then it would be
the Court’s responsibility to raise its power granted by Section 38 by transferring the
proceedings of the Bar and passing satisfactory orders. Appellate powers provided by Section
38 do not apply to the High Courts.

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 250

CONCLUSION

“Lawyers are the foot soldiers of our Constitution.”

- Rennard Strickland

Legal Profession is highly significant in nature. Law as a profession is regarded as noble and
righteous and thus, it is important that professional ethics are maintained. There have been
instances wherein an Advocate attempted to murder his own client. Thus, it is extremely
necessary to make sure that people with such criminal tendencies are not allowed to protect
people from being punished. There are few provisions which ensure that the person getting
enrolled as an advocate has no criminal records, however, these are not enough to ensure the
criminal tendencies of that person. Therefore, it is extremely necessary for the legislators to
create and modify laws relating to the various types of misconducts in this profession.

A lawyer is supposed to protect people from being punished, it does not suit a figure of such a
stature to himself indulge in such instances of misconduct. The Bar Councils of each state must
conduct yearly education programmes regarding the do’s and don’ts of the profession in order
to educate legal practitioners. It is equally important to remind the Advocates of their various
duty’s relating to the profession. In case of misconduct, strict punishments must be awarded to
the accused in order to set examples for the rest of the Advocates.

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020
An Open Access Journal from The Law Brigade Publishers 251

ENDNOTES

i
Bar Council Of Maharashtra vs M. V. Dabholkar, available at https://indiankanoon.org/doc/276363/
ii
AIR 1992 SC 2188
iii
AIR 1979 SC 281
iv
AIR 1965 Mys. 28
v
AIR 2001 SC 2028
vi
AIR 1993 SC 1608
vii
Professional Misconduct, available at https://easyadvocacy.com/EADigest/Professional-Misconduct-and-Its-
Implications-Under-Advocates-Act-1961 (Visited on 7th October, 2020)
viii
AIR 1935 Cal. 547
ix
Misconduct under the Advocates Act, available at https://blog.ipleaders.in/professional-misconduct-
advocates-act-1961/amp/ (Visited on 7th October, 2020)
x
Misconduct of Lawyers in India, available at http://www.legalservicesindia.com/article/1665/Professional-
misconduct-of-lawyers-in-india.html (Visited on 10th October, 2020)
xi
Duties of an Advocate, available at https://www.lawyersclubindia.com/articles/rights-and-duties-of-an-
advocate-10009.asp (Visited on 10th October, 2020)
xii
Landmark judgements on Misconduct, available at https://www.pathlegal.in/List-of-Landmark-Judgements:-
Misconduct-of-an-advocate-and-I-blog-1158310 (Visited on 8th October,2020)
xiii
Supra note 12
xiv
Ibid
xv
Ibid
xvi
Supra Note 10

Indian Politics & Law Review Journal (IPLRJ)

ISSN 2581 7086
Volume 5 - 2020