FACULTY OF JURIDICAL SCIENCES

SUBJECT: Professional Ethics and

Professional Accounting System

SUBJECT CODE: BAL 704/BBL704/ LL.B. 503

LECTURE:28

NAME OF FACULTY: Ms. Anjali Dixit

Assistant Professor
 Lecture-28

Reciprocity as partners in administration of Justice

 Reciprocity as partners in administration of Justice
The un courteous conduct or misconduct of a lawyer or judge may amount to contempt of Court, there are
two Types of Contempt of Court. for example, using insulting language against a judge or threatening
him with transfer or impeachment or addressing the judge in a loose manner or questioning his authority
to ask questions or making scandalous allegations against a judge etc. It amounts to contempt of Court.
He is liable for his un courteous act and punishable for such contempt of Court. The punishment for
contempt of Court is intended to protect the public confidence in the system of Administration of Justice.
Bar-Bench Relation in law refers to the cordial relationship between the Advocates and the Judges. The
Bar (Advocates) and Bench (Judges) play an important role in the administration of justice. The judges
administer the law with the assistance of the lawyers. The lawyers are the officers of the court. They are
expected to assist the court in the administration of justice. As the officers of the court the lawyers are
required to maintain respectful attitude toward the court bearing in mind that the dignity of the judicial
office is essential for the survival of the society. Mutual respect is necessary for the maintenance of the
cordial relations between the Bench and Bar. The opinion of our Supreme Court in the context of Bench-
Bar Relation has been clearly laid down in P.D. Gupta v. Ram Murti and Others1 as follows: "A lawyer
owes a duty to be fair not only to his client but also to the court as well as to the opposite party in the
conduct of the case. Administration of justice is a stream which has to be kept pure and clean. It has to be
kept unpolluted. Administration of justice is not something which concerns the Bench only. It concerns
the Bar as well. The Bar is the principal ground for recruiting judges. Nobody should be able to raise a
finger about the conduct of a lawyer. Actually judges and lawyers are complementary to each other. The
primary duty of the lawyer is to inform the court as to the law and facts of the case and to aid the court to
do justice by arriving at the correct conclusions. Good and strong advocacy by the counsel is necessary
for the good administration of justice. Consequently, the counsel must have freedom to present his case
fully 1 AIR 1998 SC 283. and properly and should not be interrupted by the judges unless the interruption
is necessary."

In Mahant Hakumat Rai v. Emperor2 the Lahore High Court had held that "Without failing in respect to
Bench, it is the duty of the members of the Bar to assert their just rights to be heard by the tribunal before
which they are practising. They should be fearless and independent in the discharge of their duties, and
would be perfectly right in protesting against irregular procedure on the part of any judge; and if the
advocate is improperly checked or found fault with, he should vindicate the independence of the Bar. He
would be perfectly justified in insisting on getting a proper hearing and he would be perfectly right to
object to any interruption with the course of his argument such as to disturb him in doing his duty to his
client. Plenary powers vested in the Presiding Officer of the Court, apart from the fact that they have
rarely been used against members of the legal profession so far, should only be used to vindicate the
honour of the court or to satisfy the necessities of public justice and not as a matter of course." It may,
however, be noted that the presence of professional etiquette coupled with recognition by judiciary of the
importance of an independent Bar, will work together to minimize the possibility of confrontation
between the Bench and the Bar. To conclude this part we can say that, a free and fearless Bar is not to be
preferred to an independent judiciary, nor an independent judiciary to a free bar. Neither has a primacy
over the other. Both are indispensable to a free society. The freedom of the Bar presupposes an
independent judiciary through which that freedom may, if necessary, be vindicated. One of the potent
means for assuring judges of their independence is responsible, well- behaved, cultured and, learned Bar.
Finally, reciprocal adjustment of conduct by the Bench and the Bar is the keystone to the smooth
functioning of courts in general interest of the society.

Professional misconduct of lawyers in India

Advocacy is a noble profession and an advocate is the most accountable, privileged and erudite person of
the society and his act are role model for the society, which are necessary to be regulated. Professional
misconduct is the behaviour outside the bounds of what is considered acceptable or worthy of its
membership by the governing body of a profession. Professional misconduct refers to disgraceful or
dishonourable conduct not befitting an advocat. Chapter V of the Advocate Act, 1961, deals with the
conduct of Advocates. It describes provisions relating to punishment for professional and other
misconducts. Section 35(1) of the Advocate Act, 1961, says, 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 it disciplinary committee. Generally legal
profession is not a trade or business, it’s a gracious, noble, and decontaminated profession of the society.
Members belonging to this profession should not encourage deceitfulness and corruption, but they have to
strive to secure justice to their clients. The credibility and reputation of the profession depends upon the
manner in which the members of the profession conduct themselves. It’s a symbol of healthy relationship
between Bar and Bench.

The Advocates Act, 1961 as well Indian Bar Council are silent in providing exact definition for
professional misconduct because of its wide scope, though under Advocates Act, 1961 to take disciplinary
action punishments are prescribed when the credibility and reputation on the profession comes under a
clout on account of acts of omission and commission by any member of the profession.

Meaning and Definition

Profession is a vocation requiring some significant body of knowledge that is applied with high degree of
consistency in the service of some relevant segment of society, by Hodge and Johnson. Occupation
especially one requiring advanced education and special training by A. S. Hornby. It is different from
other types of jobs, in the sense that it requires skills and these skills will be improved with experience.

The attributes of a profession as laid down by Dalton E. McFarland are;

1) The existence of a body of specialized knowledge or techniques

2) Formalized method of acquiring training and experience

3) The establishment of representative organization with professionalism as its goal.

4) The formation of ethical codes for the guidance of conduct.

5) The charging of fees based on services but with due regards for the priority of service over the desire
for monetary rewards.

A person who carries/undertakes the profession is called a professional. Depending on the profession a
person undertakes, he/she is identified with a special name relevant to the profession.

Misconduct, according to Oxford dictionary means a wrongful, improper, or unlawful conduct motivated
by premeditated act. It is a behavior not conforming to prevailing standards or laws, or dishonest or bad
management, especially by persons entrusted or engaged to act on another's behalf. The expression
professional misconduct in the simple sense means improper conduct. In law profession misconduct
means an act done willfully with a wrong intention by the people engaged in the profession. It means any
activity or behaviour of an advocate in violation of professional ethics for his selfish ends. If an act
creates disrespect to his profession and makes him unworthy of being in the profession, it amounts to
professional misconduct. In other word an act which disqualifies an advocate to continue in legal
profession.

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. ‘Misconduct’ per se has been defined in
the Black’s Law Dictionary to be “any transgression of some established and definite rule of action, a
forbidden act, unlawful or improper behavior, willful in character, a dereliction of duty.” In a different
context, the 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 advoate 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 competeny, then it is open to say that he is guilty of professional misconduct.

Misconduct is sufficiently comprehensive to include misfeasance as well as malfeasance and is applied to

the professional people, it include unprofessional acts even though they are not inherently wrongful. The
professional misconduct may consist the fact in any conduct, which tends to bring reproach on the legal
profession or to alienate the favourable opinion which the public should entertain concerning it. In state of
Punjab v Ram Singh the supreme Court held that the term misconduct may involve moral turpitude, it
must be 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 not mere error of
judgement, carelessness or negligence in performance of duty.

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.

It may be noted that in arriving at the decision in the case, the Supreme Court carried out an over-view of
the jurisprudence of the courts in the area of misconduct of advocates. It reiterated that the term
“misconduct” is incapable of a precise definition. Broadly speaking, it envisages any instance of breach of
discipline. It means improper behavior, intentional wrongdoing or deliberate violation of a rule of
standard of behavior. The term may also include wrongful intention, which is not a mere error of
judgment. Therefore, “misconduct”, though incapable of a precise definition, acquires its connotation
from the context, the delinquency in its performance and its effect on the discipline and the nature of duty.

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.

Ultimately, as it has been upheld and reiterated that “misconduct” would cover any activity or conduct
which his professional brethren of good repute and competency would reasonably regard as disgraceful or
dishonourable. 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
nor in traditional cant in the books 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.

Provisions in Advocates act 1961

The advocates act 1961 is a comprehensive legislation that regulates the legal practice and legal education
in India. 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. It also provides for the provisions
relating to the admission and enrolment of advocates and advocates right to practice. 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 expression used in the section is Professional or other misconduct. So even
conduct unconnected with the profession may account to a misconduct as for example, conviction for a
crime, though the crime was not commited in the professional capacity. At the same time it is to be noted
that a mere conviction is not sufficient to find an advocate guilty of misconduct, the court must look in to
the nature of the act on which the conviction is based to decide whether the advocate is or is not an unfit
person to be removed from or to be allowed to remain in the profession.

Misconduct is of infinite variety, the expression professional or other misconduct must be understood in
their plain and natural meaning and there is no justification in restricting their natural meaning. The term
misconduct usually implies an act done willfully with a wrong intention and as applied to professional
people it includes unprofessional acts even though such acts are not inherently wrongful.

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 practicing in the lower courts who
are in a position to recommend clients to counsel practicing 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 lay 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 above are only few important code of conduct to be observed by an advocate practicing in India.
According to Justice Abbot Parry, there are seven important qualities that a lawyer should possess, he call
these qualities as seven lamps of advocacy, they are; Honesty, Courage, Industry, Wit, eloquence,
Judgement, and Fellowship. Apart from that the panchsheel of the bar are Honesty, Industry, Justice,
Service and Philisophy and Panchsheel of the bench according to Sri ram Kishore Rande are, Impartiality,
Independence, Integrity and Industry, Judicial activism and Prayer. Among the various duties of the
advocates like, duties to client, court, public, colleagues and self, selected points can be picked up and
arranged according to the due and relative importance and are called as ten commandments of advocates
they are;

a) Duties to client
1) Protection of the interest of the client
2) Proper estimation of the value of legal advices and services

b) Duties to court
3) Honesty and respect
4) Preparation of the case
c) Duties to Public
5) Service
6) Loyalty to law and justice

d) Duties to colleagues
7) Fellowship
8) Fairness
e) Duties to self
9) Systematic study
10) Prudence and deligence

The rules laid down by the Bar Council of India forms the code of conduct for advocates and in broad
sense any violation of such rules or code of conduct can be termed as professional misconduct. The scope
of the term has been still widened by the Supreme Court in various decisions.

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.
 SELF-TEST QUESTIONS

S.NO Question Option (a) Option (b) Option (c) Option (d)

1 John D M
Failure to return will executed and kept in safe Souza v Veerendra In re DC None of
custody edward Rao v Tek Saxena the Above
Ani Chand

2 Harish None of
Onkar Harish
Chander the Above
Singh V Chander
Constant abstention from conducting of cases Singh V
Angrez Singh V SN
SN
Singh Tripathi
Tripathi

3 Harish None of
DS Dalai Harish
Chander the Above
V State Chander
Misappropriation of amount paid Singh V
Bank of Singh V SN
SN
India Tripathi
Tripathi

4 M M None of
Veerendra Veerendra In re DC the Above
Attesting forged affidavit
Rao v Tek Rao v Tek Saxena
Chand Chand

5 M None of
Appearing with out authority on a forged In re Veerendra In re DC the Above
vakalath advocate Rao v Tek Saxena
Chand

Answers: 1-(a),2-(a), 3-(a),4-(a),5-(a)