Ethics Notes Law

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Ethics Notes - law
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PROFESSIONAL ETHICS NOTES
IMPORTANCE OF LEGAL PROFESSION

 The profession of law is the only profession which is described as a
learned and noble profession for several centuries. It is a learned
profession par excellence. No other profession touches human life at
so many points than law. The people engaged in this profession while
performing their professional duties not only earn their livelihood, but
also influence the conditions of life of many.
 The role of the lawyer is very central to the very vital organ of the
state that is judiciary. On the stage of administration of justice, his
contribution is of immense importance.
 It is also one of the most important professions for the administration
of justice and to maintain a balance between the legislature and the
common people. A well-organized system of judicial administration
requires a properly equipped and proficient Bar.
 Adversarial system requires assistance of lawyers from both sides to
adjudicate disputes between various entities.
 Legal representation is fundamental right U/A 22.
 They advise their clients on the right path and legal remedy to take,
and at the same time help in achieving that remedy in the courts.
 Many advocates effectively take advantage of PILs and also render
pro bono services.
 Law is complex and becoming more so every passing day. A common
man cannot be aware of legalities.
 Client reposes utmost trust in advocates. As an attorney, they carry
lots of authority as well as responsibility. The communication with
client is privileged.
 Bar is the ground wherefrom judges of superior courts are drawn.
SEVEN LAMPS OF ADVOCACY
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 Honesty
 Courage
 Judgment
 Wit
 Industry
 Fellowship
 Eloquence
QUALIFICATIONS FOR ENROLLMENT AS AN ADVOCATE

 As per Section 24 of the Advocate Act:
o The person must be citizen of India.
o Person must have completed the age of 21 years:
o Person must be law graduate from any university recognized by

BCI.
o The fees for the enrollment has to be paid by the candidate and if
there is any stamp fees than under Indian Stamp Act 1899, than
it should also be paid.
o Other conditions that are decided by the state bar council must
be completed along with the above mentioned conditions.
o From the academic year 2009-10, there is requirement to pass All
India Bar Examination.
o A foreign citizen may be admitted as an advocate, if Indian
citizens are permitted to practise law in that other country.
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DISQUALIFICATIONS FOR ENROLLMENT AS AN ADVOCATE

 Section 24A of the Advocate Act 1961, describes the conditions in
which a person cannot be enrolled.
o If the person is held guilty for crime related to moral turpitude.
o If the person is held guilty under The Protection of Civil Rights

Act, 1955.
o If the person has been dismissed from employment or office
under state on any charge involving moral turpitude.
This above disqualifications will remain effective for 2 years from
the date of release or removal as the case may be.
However, the above shall not apply to a person who having been
found guilty is dealt with under the provisions of the Probation of
Offenders Act, 1958.
RIGHTS OF ADVOCATES
 Under Section 29, only advocates are entitled to practice law.
 Under Section 33, no person shall be entitled to practice in any Court
or before any authority or person unless he is advocate.
 Under Section 30, every advocate whose name is entered in the State
roll shall be entitled as of right to practice throughout India,
 In all courts including the Supreme Court;
 Before any Tribunal or person legally authorized to take evidence;
and
 Before any other authority or person before whom such advocate
is by or under any law for the time being in force entitled to
practice.
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 However, under Section 32, any court, authority, or person may
permit any person, not enrolled as an advocate under this Act, to
appear before it or him in any particular case.
 Under Section 23, right of pre-audience is conferred in the following
order
 The Attorney General of India
 The Solicitor General of India
 The Additional Solicitor-General of India.
 The second Additional Solicitor-General of India
 The Advocate-General of any State
 Senior advocates
 Other advocates
 The right of pre-audience among Advocates-General inter se shall be
determined by their respective seniority.
 The right of pre-audience of senior advocates inter se and other
advocates inter se shall be determined by their respective seniority.
OTHER PRIVILEGES OF ADVOCATES

 Advocate is exempted from arrest under civil process while going to or
attending and while returning from the court/tribunal. This
exemption has been provided under Section 135 of CPC. However, this
protection is not available in relation to criminal offences or for the
contempt of court.
 Under Section 126 of the Indian Evidence Act - No communication
made between advocates and client for the purpose of professional
employment is permitted to be disclosed.
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STATE BAR COUNCIL - ESTABLISHMENT AND FUNCTIONS

Section 3. State Bar Councils
 There shall be Bar Council for each state. In few cases, there is
provision of common Bar Council for a group of two or more states.
 A State Bar Council shall consist of the following members, namely:
 In the case of Delhi, the Additional Solicitor-General of India;
 In the case of other states, the Advocate-General of the State;
 In the case of a SBC with an electorate not exceeding five thousand,
fifteen members.
 In the case of a SBC with an electorate exceeding five thousand but
not exceeding ten thousand, twenty members, and
 In the case of a SBC with an electorate exceeding ten thousand,
twenty-five members.
 Members shall be elected in accordance with the system of
proportional representation by means of the single transferable vote
from amongst advocates on the electoral roll of the SBC.
 As nearly as possible one-half of such elected members shall be
persons who have for at least ten years been advocates on roll.
 There shall be a Chairman and a Vice-Chairman of each SBC elected
by the Council in such manner as may be prescribed.
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Section 6. Functions of State Bar Councils.
 The functions of a State Bar Council shall be:
 To admit persons as advocates on its roll;
 To prepare and maintain such roll;
 To entertain and determine cases of misconduct;
 To safeguard the rights, privileges and interests of advocates;
 To promote the growth of Bar Associations for the purposes of
effective implementation of the welfare schemes
 To promote and support law reform;
 To conduct seminars and organise talks on legal topics;
 To organise legal aid to the poor in the prescribed manner;
 To manage and invest the funds;
 To provide for the election of its members;
 To visit and inspect Universities as per directions given by BCI
 To perform all other functions conferred on it;
 To do all other things necessary for the aforesaid functions.
 A SBC may constitute one or more funds for the purpose of
 Giving financial assistance to organise welfare schemes for the
indigent, disabled or other advocates;
 Giving legal aid or advice in accordance with the rules made in this
behalf;
 Establishing law libraries.
 A SBC may receive any grants, donations, gifts or benefactions for all
or any of the purposes specified above which shall be credited to the
appropriate fund or funds constituted for that purpose.
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Section 8. Term of office of members of State Bar Council.
 The term of office of an elected member of a SBC shall be five years
from the date of publication of the result of his election.
 Where a SBC fails to provide for the election of its members before the
expiry of the said term, the BCI may extend the said term for a period
not exceeding six months.
BAR COUNCIL OF INDIA

Section 4. Bar Council of India
 There shall be a BCI consisting of the following members, namely:
 The Attorney-General of India, ex officio;
 The Solicitor-General of India, ex officio;
 One member elected by each SBC from amongst its members.
 No person shall be eligible for being elected as a member of the BCI
unless he was advocate for at least ten years on a State roll.
 There shall be a Chairman and a Vice-Chairman of the BCI elected by
the Council in such manner as may be prescribed.
 The term of office of a member of the BCI elected by the SBC:
 An ex officio member of a SBC has a term of be two years or till he
ceases to be a member of the SBC, whichever is earlier; and
 Non ex-officio members of BCI has a term until he holds office as a
member of the SBC:
 Every such member shall continue to hold office as a member of
the BCI until his successor is elected.
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Section 7. Functions of Bar Council of India.
 To lay down standards of professional conduct and etiquette;
 To lay down the procedure to be followed by DC;
 To safeguard the rights, privileges and interests of advocates;
 To promote and support law reform;
 To deal with and dispose of any matter referred to it by a SBC;
 To exercise general supervision and control over SBC;
 To promote legal education and to lay down standards of such
education in consultation with the Universities and the SBC;
 To recognise Universities for law degree and to visit and inspect
Universities or cause the SBC to visit and inspect;
 To conduct seminars and organise talks on legal topics;
 To organise legal aid to the poor in the prescribed manner;
 To recognise on a reciprocal basis foreign qualifications in law;
 To manage and invest the funds of the Bar Council;
 To provide for the election of its members;
 To perform all other functions conferred on it under this Act;
 To do all other things necessary for discharging its functions.
 The BCI may constitute one or more funds for the purpose of
 Giving financial assistance to organise welfare schemes for
indigent, disabled or other advocates;
 Giving legal aid or advice in accordance with the rules made in this
behalf.
 Establishing law libraries.
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 BCI may receive any grants, donations, gifts or benefactions for all or
any of the above purposes which shall be credited to the appropriate
fund or funds constituted for that purpose.
Section 5. Bar Council to be body corporate.

 Every Bar Council shall be
o a body corporate,
o having perpetual succession, and
o a common seal,
with power
o to acquire and hold property, both movable and immovable, and
o to contract, and sue and be sued.
Section 10B. Disqualification of elected members of Bar Council.

 If he is declared by the Bar Council of which he is a member to have
been absent without sufficient excuse from three consecutive meetings
of such Council, or
 If his name is removed from the roll of advocates, or
 If he is otherwise disqualified under any rule made by the BCI.
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Section 15. Power to make rules.

 BCI/SBC may make rules to carry out its functions particularly:
 The election of members by secret ballot, conditions for the
exercise of the right to vote, the preparation and revision of
electoral rolls, and the manner of publication of election results;
 The manner of election of the Chairman & the Vice-Chairman;
 The manner in which and the authority by which doubts and
disputes as to the validity of an election to the Bar Council or to the
office of the Chairman or VC shall be finally decided;
 The filling of casual vacancies in the Bar Council;
 The powers and duties of the Chairman and the Vice-Chairman;
 The constitution of one or more funds by a Bar Council;
 Organisation of legal aid and advice to the poor, constitution and
functions of committees and sub-committees for that purpose and
description of proceedings in connection with which legal aid or
advice may be given;
 The summoning and holding of meetings, the conduct of business,
and the quorum requirements;
 The constitution and functions of any committee and the term of
office of members of any such committee;
 The qualifications and the conditions of service of the secretary,
the accountant and other employees;
 The maintenance of books of accounts and other books by the Bar
Council, the appointment of auditors and the audit;
 The management and investment of the funds.
 No rules made by a SBC shall have effect unless they have been
approved by the BCI.
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Powers of BCI
 To constitute one or more disciplinary committee u/s 9
 To appoint one or more legal aid committee u/s 9A
 To constitute standing committee u/s 10
 To constitute executive committee consisting of 10 members u/s 10
 To constitute legal edu committee consisting of 10 members u/s 10
 To constitute any other committee for the purpose of Act
 To remove name from roll if the same was entered by
misrepresentation.
 To call for records of any proceedings of SBC/its committee and
exercise its power of revision
 To punish for professional or other misconduct.
 To hear and dispose off appeal against orders of DC of SBC u/s 37
 To make rules u/s 15
 To assist financially any SBC by grant or otherwise u/s 46A
 To prescribe conditions for acceptance of foreign qualifications
 To give directions to any SBC/its committee
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Powers of SBC
 To admit advocates on the state roll
 To maintain roll of advocates
 To constitute one or more DC u/s 9
 To constitute executive committee consisting of 5 members u/s 10
 To constitute enrollment committee consisting of 5 members u/s 10
 To constitute any other committee for the purpose of Act
 To punish for professional or other misconduct u/s 35
 To make rules u/s 15
PROFESSIONAL ETHICS - MEANING, NATURE, AND NEED

Meaning of Ethics
The word 'ethics' is derived from the Greek word 'Ethos' meaning custom
or a habitual mode of conduct. Ethics is essentially a moral science. It is
the branch of philosophy which is concerned with human character and
conduct.
Though generally 'ethics' is treated to be the same as moral philosophy,
yet it is convenient to distinguish between 'ethics' which refers to
systematic general science of right and wrong conduct, and morals or
morality which refers to the actual patterns of conduct and direct
working rules of moral action. Generally speaking, ethics can be said to
be the study of human actions in respect of they being right or wrong
actions of individuals and social groups.
Ethics is broadly a sense of duty. 'Legal ethics' is that branch of moral
science which lays down certain duties for observance which an advocate
owes to the society; to the court; to the profession; to his opponent; to his
clients and to himself.
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Professional ethics are those set code or moral principles that govern a
person's conduct in a professional workplace or work life. It consists of
those fundamental values on which the profession has been built. Legal
ethics is one of the professional ethics which lays down certain duties for
the observance of its members, which he owes to the society, to the court,
to the profession, to his client and to himself.
The practicing lawyer shall have the social responsibility and dignity of
the legal profession and high standard of integrity and efficient service to
his client as well as for public welfare.
Nature of Professional Ethics

Ethics is far from being purely a natural science which seeks only to
explain things as they are, their nature and essence but it is a normative
science. It is concerned not only with things and actions but our
judgments upon them as well. Ethics deals with human acts.
Ethics is essentially concerned with "Right and wrong".
The American bar Association's Model Rules of Professional Conduct,
include:
(1) Rules to ensure that lawyers zealously serve and represent their
clients (the advocacy ideal),
(2) Rules to ensure that they show candour to tribunals, fairness to
opposing parties, and are allowed to reveal information to prevent a
client committing a criminal act (the social responsibility ideal),
(3) Rules regulating the way public service are given and encouraging
lawyers to do pro bono work (the justice ideal) and
(4) Rules governing relationship between lawyers within firms and
upholding the integrity of the profession as a whole by reporting
misconduct (the ideal of collegiality).
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Need for Professional Ethics
A profession which is performing such vital service to the society must
also be expected to conduct itself to come upto the expectations of the
society. His professional conduct must be above board. A deviance on the
part of the individual members of the legal profession has a bearing on
the interest, lives and conditions of the life of the members of the society.
Therefore, the society has an interest in the manner of regulation of the
deviations, deviances and delinquencies in the profession conduct of this
profession. To meet this interest, the standards of profession conduct
called the legal ethics serve as instruments to regulate the professional
conduct.
The standards of professional conduct, that is the legal ethics not only
serve the interest of the society but they also help the legal profession to
maintain the honour and dignity of the profession as well as the system
of administration of justice prevailing in the society. Further, to secure a
spirit of friendly cooperation between the bench and the Bar in
promotion of highest standards of justice. It also establish honourable
and fair dealings of the counsel with the client, opponent and witnesses.
The legal profession is necessarily the keystone of the arch of
Government. If it is weakened, and allowed to be a subject of the
corroding and demoralising influence of those, who are controlled by
craft, greed or gain or other unworthy motive, sooner or later the arch,
must fall. The future of the country depends upon the maintenance of the
shrine of the justice, pure and unrolled by the advocates. Thus, it cannot
be so maintained, unless the conduct and motives of the members of the
legal profession are what they object to be. Therefore, it becomes the
plain and simple duty of the lawyers to use their influence in every
legitimate way to help and make the Bar what it is ought to be. A code of
ethics is one method of furtherance of this end.
ADVOCATE’S DUTY TOWARDS THE CLIENT
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 Duty of care to client to his best ability so as to not hurt his interest by
his acts or omissions.
 Good behaviour with clients
 No collusion with opposite party or advocates.
 Not give any such advice knowingly that could effect negatively.
 Not accept gifts, fees from opposition party.
 Not disclose any weak point of his client with the opposition.
 Bound to accept briefs for fee consistent with his standing and the
nature of the case regardless of his personal opinion.
 Not withdraw from service without sufficient cause and only after
giving reasonable and sufficient notice
 Not appear in matters where he himself is a witness and not continue
if he is likely to be witness.
 Full and frank disclosure to client at commencement and continuing
disclosure
 Uphold interest of the client fearlessly by all fair and honorable means
without regard to unpleasant consequances
 Not suppress material or evidence so that it does not lead to
conviction of an innocent.
 Not disclose (directly or indirectly) the communications between
client and himself except as permitted u/s 126 of Evidence Act.
 An advocate should not be a party to stir up or instigate litigation.
 An advocate should not act on the instructions of any person other
than his client or the client’s authorised agent.
 Not charge fees depending on success of matters or as percentage of
proceeds
 Not receive or agree to receive interest in actionable claim
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 Not bid or purchase property directly or indirectly arising out of legal
proceeding in which he was engaged in any way
 Not adjust fees against his personal liability to the client not arising in
the course of his employment
 Not misuse or takes advantage of the confidence reposed in him by his
client.
 Keep proper accounts of client's money and expenses
 Not divert sums received for expenses or fees without instructions
 Intimate the client regarding amounts received on behalf of clients.
 Adjust fees due to him after termination of proceedings and return the
excess amount
 Provide copy of accounts to the client
 An advocate shall not enter into arrangements whereby funds in his
hands are converted into loans.
 Not lend money to his client except payment to court during progress
of the proceedings
 Not appear for opposite parties
IMPORTANT CASES ON DUTY TO CLIENT

An Advocate v. BCI (SC)
 Proceedings u/s 35 is quasi criminal in nature
 Need to be satisfied beyond reasonable doubt.
 Not tolerable negligence but culpable negligence is required.
 Specific charge and issues must be framed.
PD Gupta v. Ram Murthi (SC)
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 Code of conduct is not exhaustive.
 Buying properties under litigation amounts to misconduct.
TC Mathai v. District Judge (SC)

 Appointment of non-advocate as pleader u/s 303 of CrPC requires
prior permission.
 Section 2 of Power of Attorney Act cannot override specific provisions
of CrPC
RD Saxena V. Balram Prasad Sharma

 Legal files cannot amount to goods bailed.
 Professional has no right to lien on records.
 Refusal to return files would amount to misconduct.
Harish Chandra Tiwari Versus Baiju (SC)

The advocate did not pay the amount to the client, which was taken from
the court and thus the name of the advocate was removed from the roll of
advocates.
DETAILED RULES ON DUTY TO CLIENTS
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1. Bound to accept briefs
An advocate is bound to accept any brief in the courts or tribunals or
before any other authority in or before which he proposes to practise. He
should levy fees which is at par with the fees collected by fellow advocates
of his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.
2. Not withdraw from service

An advocate should not ordinarily withdraw from serving a client once
he has agreed to serve them. He can withdraw only if he has a sufficient
cause and by giving reasonable and sufficient notice to the client. Upon
withdrawal, he shall refund such part of the fee that has not accrued to
the client.
3. Not appear in matters where he himself is a witness

An advocate should not accept a brief or appear in a case in which he
himself is a witness. If he has a reason to believe that in due course of
events he will be a witness, then he should not continue to appear for the
client. He should retire from the case without jeopardising his client’s
interests.
4. Full and frank disclosure to client

An advocate should, at the commencement of his engagement and during
the continuance thereof, make all such full and frank disclosure to his
client relating to his connection with the parties and any interest in or
about the controversy as are likely to affect his client’s judgement in
either engaging him or continuing the engagement.
5. Uphold interest of the client
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It shall be the duty of an advocate fearlessly to uphold the interests of his
client by all fair and honourable means. An advocate shall do so without
regard to any unpleasant consequences to himself or any other. He shall
defend a person accused of a crime regardless of his personal opinion as
to the guilt of the accused. An advocate should always remember that his
loyalty is to the law, which requires that no man should be punished
without adequate evidence.
6. Not suppress material or evidence

An advocate appearing for the prosecution of a criminal trial should
conduct the proceedings in a manner that it does not lead to conviction
of the innocent. An advocate shall by no means suppress any material or
evidence, which shall prove the innocence of the accused.
7. Not disclose the communications between client and himself

An advocate should not by any means, directly or indirectly, disclose the
communications made by his client to him. He also shall not disclose the
advice given by him in the proceedings. However, he is liable to disclose if
it violates Section 126 of the Indian Evidence Act, 1872.
8. An advocate should not be a party to stir up or instigate

litigation.
9. An advocate should not act on the instructions of any person

other than his client or the client’s authorised agent.
10. Not charge depending on success of matters
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An advocate should not charge for his services depending on the success
of the matter undertaken. He also shall not charge for his services as a
percentage of the amount or property received after the success of the
matter.
11. Not receive interest in actionable claim

An advocate should not trade or agree to receive any share or interest in
any actionable claim. Nothing in this rule shall apply to stock, shares and
debentures of government securities, or to any instruments, which are,
for the time being, by law or custom, negotiable or to any mercantile
document of title to goods.
12. Not bid or purchase property arising of legal proceeding

An advocate should not by any means bid for, or purchase, either in his
own name or in any other name, for his own benefit or for the benefit of
any other person, any property sold in any legal proceeding in which he
was in any way professionally engaged. However, it does not prevent an
advocate from bidding for or purchasing for his client any property on
behalf of the client provided the Advocate is expressly authorised in
writing in this behalf.
13. Not bid or transfer property arising of legal proceeding

An advocate should not by any means bid in court auction or acquire by
way of sale, gift, exchange or any other mode of transfer (either in his
own name or in any other name for his own benefit or for the benefit of
any other person), any property which is the subject matter of any suit,
appeal or other proceedings in which he is in any way professionally
engaged.
14. Not adjust fees against personal liability
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An advocate should not adjust fee payable to him by his client against his
own personal liability to the client, which does not arise in the course of
his employment as an advocate.
15.An advocate should not misuse or takes advantage of the

confidence reposed in him by his client.
16.Keep proper accounts

An advocate should always keep accounts of the clients’ money entrusted
to him. The accounts should show the amounts received from the client or
on his behalf. The account should show along with the expenses incurred
for him and the deductions made on account of fees with respective dates
and all other necessary particulars.
17. Divert money from accounts

An advocate should mention in his accounts whether any monies received
by him from the client are on account of fees or expenses during the
course of any proceeding or opinion. He shall not divert any part of the
amounts received for expenses as fees without written instruction from
the client.
18. Intimate the client on amounts

Where any amount is received or given to him on behalf of his client, the
advocate must without any delay intimate the client of the fact of such
receipt.
19. Adjust fees after termination of proceedings
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An advocate shall after the termination of proceedings, be at liberty to
adjust the fees due to him from the account of the client. The balance in
the account can be the amount paid by the client or an amount that has
come in that proceeding. Any amount left after the deduction of the fees
and expenses from the account must be returned to the client.
20. Provide copy of accounts

An advocate must provide the client with the copy of the client’s account
maintained by him on demand, provided that the necessary copying
charge is paid.
21. An advocate shall not enter into arrangements whereby funds

in his hands are converted into loans.
22. Not lend money to his client

An advocate shall not lend money to his client for the purpose of any
action or legal proceedings in which he is engaged by such client. An
advocate cannot be held guilty for a breach of this rule, if in the course of
a pending suit or proceeding, and without any arrangement with the
client in respect of the same, the advocate feels compelled by reason of
the rule of the Court to make a payment to the Court on account of the
client for the progress of the suit or proceeding.
23. Not appear for opposite parties
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PROFESSIONAL OR OTHER MISCONDUCT- MEANING AND SCOPE

 An advocate must strictly comply with professional ethics or else he
may be liable for professional misconduct.
 The term ‘Professional Misconduct’ in the simple sense means
improper conduct. In legal sense it means an act done willfully with a
wrong intention by the people engaged in the profession. It means any
activity or behavior of an advocate in violation of professional ethics
for his selfish ends. If an act results in disrepute to his profession and
make him unfit of being in the profession, it amounts to ‘Professional
Misconduct’.
 Professional misconduct may consist:
 in betraying the confidence of a client
 in attempting by means to practice fraud
 to deceive the Court or adverse party or his Counsel
 In State of Punjab v. Ram Singh, The Supreme Court held that the term
‘misconduct’ may involve –
 moral turpitude
 improper or wrongful behavior
 unlawful behavior
 willful in character
 a forbidden act
 transgression
 carelessness or negligence in performance of duty
 or the act complained of bears forbidden quality or character
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 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 of the Advocates Act
provides for referring any complaint to disciplinary committee.
 The act as well as Bar Council are silent in providing the exact
definition of professional misconduct, punishments are provided on
acts of omission and commission by any member of the profession.
 In Shambhu Ram Yadav v. Hanuman Das Khatry, the Supreme Court
made it clear that writing a letter to his client to send money to bribe
the Judge is a serious misconduct. It also held that legal profession is
not a trade or business.
 Misconduct of an Advocate may be explained with reference to the
following –
o Dereliction of Duty
o Professional Negligence
o Misappropriation
o Contempt of Court and Improper behavior before Magistrate
o Furnishing false information
o Appearing for both the sides
o Giving Improper Advice
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.
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The Supreme Court in a 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
o suppression of truth, or
o deliberate misrepresentation of facts
It is misconduct if an advocate neglects to furnish requisite documents

or material papers despite of repeated adjournments.
The Supreme Court has held 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 amounts to professional misconduct.
4. Contempt of Court and Improper behavior before Magistrate
It will also include making of false allegations against the judiciary.
5. Furnishing false information
Furnishing false information amounts to ‘professional 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
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
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to take up the brief he should advice the client to consult another
counsel but should not give improper advice.
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STATE BAR COUNCIL AND ITS DISCIPLINARY COMMITTEE

Sec-9. Disciplinary Committees.
 A Bar Council shall constitute one or more disciplinary committees,
each of which shall consist of three persons
 two shall be co-opted by the Council from amongst its members
 one shall co-opted by the Council from amongst non-member
advocates who have been on state roll for ten years or more.
The chairman shall be senior-most amongst the members of DC.
 As per Sec-7, BCI lays downs the procedure to be followed by its
disciplinary committee and the disciplinary committee of each SBC.
Sec-35. Punishment of advocates for misconduct

 Where on receipt of a complaint or otherwise a SBC 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 DC.
 The SBC may, either of its own motion or on application made to it by
any person interested, withdraw a proceeding pending before its DC
and direct the inquiry to be made by any other DC of that SBC.
 The DC shall fix a date for the hearing of the case and shall cause a
notice thereof to be given to the advocate concerned and to the
Advocate-General of the State.
 The DC after giving the advocate concerned and the Advocate-General
an opportunity of being heard, may
 dismiss the complaint;
 reprimand the advocate;
 suspend the advocate from practice for specified period;
 remove the name of the advocate from the roll.
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 Where an advocate is suspended from practice, he shall, during the
period of suspension, be debarred from practising in any court or
before any authority or person in India.
 The Advocate-General may appear before the DC either in person or
through any advocate appearing on his behalf.
 In this section, section 37 and section 38, the expressions “Advocate-
General” and Advocate-General of the State” shall, in relation to the
Union territory of Delhi, mean the Additional Solicitor General of
India.
Sec-36. Disciplinary powers of Bar Council of India.

 Where on receipt of a complaint or otherwise the BCI has reason to
believe that any advocate whose name is not entered on any State roll
has been guilty of professional or other misconduct, it shall refer the
case for disposal to its DC.
 The DC of BCI may, either of its own motion or on a report by a SBC
or on an application made to it by any person interested, withdraw for
inquiry before itself any proceedings for disciplinary action against
any advocate pending before the state DC and dispose it.
 The DC of BCI, in disposing of any case under this section, shall
observe, so far as may be, the procedure laid down in section 35, the
references to the Advocate-General in that section being construed as
references to the Attorney-General of India.
Sec-36A. Changes in constitution of disciplinary committees.
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Sec-36B. Disposal of disciplinary proceedings.
 The DC shall dispose of the complaint expeditiously within a period of
one year, failing which such proceedings shall stand transferred to the
BCI which may dispose of the same.
Sec37. Appeal to the Bar Council of India.

 Any person aggrieved by an order of the state DC or the Advocate
General may, within sixty days of the date of the communication of the
order to him, prefer an appeal to the BCI.
 Every such appeal shall be heard by the DC of the BCI which may pass
such order (including an order varying the punishment awarded by
the state DC) thereon as it deems fit.
 No order shall be varied by the DC of the BCI so as to prejudicially
affect the person aggrieved without giving him reasonable
opportunity of being heard.
Sec-38. Appeal to the Supreme Court.

 Any person aggrieved by an order made by the DC of BCI or the
Attorney-General of India or the Advocate-General of the State
concerned, as the case may be, may within sixty days, prefer an appeal
to the Supreme Court.
 No order shall be varied by the Supreme Court so as to prejudicially
affect the person aggrieved without giving him a reasonable
opportunity of being heard.
Sec-39. Application of sections 5 and 12 of Limitation Act, 1963.
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Sec-40. Stay of order
 An appeal shall not operate as a stay of the order appealed against,
but the disciplinary committee of the BCI, or the Supreme Court,
direct the stay of such order.
Sec-41. Alteration in roll of Advocates.

 Where an order is made reprimanding or suspending an advocate, a
record of the punishment shall be entered against his name
 In the case of an advocate whose name is entered in a State roll, in
that roll;
 Where any order is made removing an advocate from practice, his
name shall be struck of the State roll
 Where any advocate is suspended or removed from practice, the
certificate granted to him shall be recalled.
Sec-42. Powers of disciplinary committee

 The DC shall have the same powers as are vested in a civil court under
the CPC, in respect of the following matters, namely:
 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 from any court
or office;
 issuing commissions for the examination of witness or documents;
 any other matter which may be prescribed:
Sec-44. Review of orders by disciplinary committee.
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 The disciplinary committee may of its own motion or otherwise
review any order within sixty days of the date of that order.
 No such order of review of the disciplinary committee of a SBC shall
have effect unless it has been approved by the BCI.
Sec-45. Penalty for illegally practising in courts/other authorities.

 Any person who practises in any court or before any authority or
person, in or before whom he is not entitled to practise under the
provisions of this Act, shall be punishable with imprisonment for a
term which may extend to six months.
Sec-48A. Power of revision.

 The BCI may, at any time, call for the record of any proceeding under
this Act which has been disposed of by a SBC 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.
 No order which prejudicially affects any person shall be passed under
this section without giving him a reasonable opportunity of being
heard.
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CONTEMPT OF COURT
Contempt of court means civil contempt or criminal contempt.
Objects of the Act

 To protect the dignity and decorum of the court
 To uphold the majesty of law
 The object is not to protect the judges from criticism.
 By providing punishment for contempt of the court the ability to
deliver fearless and impartial justice is strengthened.
Civil contempt
 Civil contempt means
o willful disobedience to any judgement, decree, direction, order,
writ or other process of a court or
o willful breach of an undertaking given to a court.
 For civil contempt on the ground of willful disobedience of court

order, it should be established that the court which had passed the
order had jurisdiction to pass such order. Disobedience of an order
passed without jurisdiction is not contempt.
 A willful breach of an unconditional undertaking given orally or in
writing either in person or through his Advocate will be treated as
civil contempt. When undertakings are given orally, the court shall
record it in the proceedings.
 Breach of a compromise entered in the court cannot be treated as civil
contempt. The remedy in such cases is only a civil suit for specific
performance of the promise.
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Defences in the Civil Contempt

 Disobedience of the Order is Not Willful
 The Order Passed Without Jurisdiction
 Order Disobeyed is Vague or Ambiguous
 Order Involves More than One Reasonable Interpretation
 Compliance with the Order is Impossible
 No Knowledge of the Order
An order passed without jurisdiction is void, hence not binding. The

person charged with contempt must prove that the court has no
jurisdiction to pass such order.
An order is treated as vague if it is not clear, specific and complete. For
violation of such order contempt proceedings cannot be taken.
If the order of the court involves more than reasonable interpretation,
and one interpretation is adopted by the party and acted in accordance
with such interpretation then he cannot be held liable for contempt of
court for not following the order interpretation.
Impossibility means that the implementation of the order is practically
not possible. Impossible is different from mere difficulty. Mere difficulty is
not a defence.
A person cannot be held liable for civil contempt, if he has no knowledge
about the order. If he has knowledge about the order, through it is not
officially communicated to him, then he cannot put this defence for
violation of the order.
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 Criminal contempt means the publication of any matter OR the
doing of any other act whatsoever which:
o Scandalizes or tends to scandalize, or lowers or tends to lower
the authority of, any court, or
o Prejudices, or interferes or tends to interfere with the due course
of any judicial proceeding, or
o Interferes or tends to interfere with, or obstructs or tends to
obstruct, the administration of justice in any other manner.
 Publication may be by words, spoken or written, or by signs, or by
visible representation, or otherwise.
 Conversation between two persons cannot be treated as publication.

 The absence of criminal intention on the part of the person who has
published the matter containing criminal contempt or done the act of
contempt will not be taken into account.
 Casting aspersion on a retired judge is not contempt.
 File noting are not meant for publication and hence not contempt.
 Scurrilous allegations or scandalization against a judge or court in
pleadings amounts to criminal contempt.
 Media trial may amount to contempt.
 Interference with court's officers, parties, or withness may amount to
CrC
 Abuse of process of court may amount to contempt.
 Making complaint against a Judge about his misconduct with
sufficient evidence to the higher authorities is not contempt. But, the
same complaint is published in any manner then it amounts to
contempt.
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 Preventing the Court Amin from executing the court order,
threatening an Advocate not to appear in a particular case,
threatening the witness, Preventing the witnesses from attending the
courts, preventing the Commissioner from performing his duties are
treated as criminal contempt.
Defences in Criminal Contempt

 Innocent Publication
 Publication Relating to a Decided Case
 Distribution of publication without knowing that it contains matter,
which may be contempt of court.
 Fair and Accurate Reporting of Judicial Proceedings
 Bonafide Complaint against the PO of a subordinate court
 No Substantial Interference with the Administration of Justice
 Truth if it is in public interest and bonafide
A person shall not be guilty of contempt if he had made any innocent

publication of any matter pending before a court without knowing that
the mater is pending a court.
Publication about the decided case is not a contempt since the case is
already decided by the court, the publication is not going to interfere
with the disposal of the case.
If a person distributes any publication without knowing that it contains
contempt of court matter then it cannot be treated as contempt. If the
publication does not contain the name and address of the Author,
publisher and printer then this defence cannot be used by the person
distributing such publications.
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Fair and accurate reporting of judicial proceedings is not a contempt.
This is because there is the principle of openness in the matter of
administration of justice.
A proper and fair comment on a decision is not a contempt of court.
Criticism is permitted to the extent where it does not interfere with the
administration of justice. So, it is open to any one to express fair,
reasonable and legitimate criticism of a judicial decision.
A bonafide complaint made in good faith against the PO of a subordinate
court to the higher courts, who have control over such subordinate court,
is not a contempt.
An act which is technically a contempt but if such act does not
substantially interfere with the administration of justice, the same may
not amount to contempt.
The following reporting of judicial proceedings though it is fair and

accurate it will be treated as contempt of court.
 Reporting of the proceedings against any law which is in force.
 Reporting of the proceedings when the court has prohibited the
reporting in the interest of the general public.
 Reporting of the proceedings conducted in the judges' chamber in the
interest of defence of public order.
 Reporting of information relating to secret process, discovery or
invention which is an issue in the case.
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Contempt against Subordinate Court

The Contempt of court Act, 1971 confers power only to the Supreme
Court and High Courts to try the contempt of court and award suitable
punishment.
Contempt against the subordinate courts shall be tried by the High Court.
The concerned subordinate court or the Advocate General of the state
shall file the petition before the High court.
A contempt which comes within the definition of S-228 of IPC shall be
tried and punished by the subordinate courts.
Section 228 of IPC: When judicial proceedings are going on, a person
causing disturbance to the proceedings and thereby shows disrespect
to the court shall be punished with simple imprisonment for a term
which may extend to 6 months or with a fine which may extend to
Rs.1000/-or with both. In such case, the court shall follow summary
procedure and no detailed enquiry is needed.
Contempt Procedure in the Supreme Court or the High Court

The Act confers the following two types of powers to the Supreme Court
and the High courts with regard to contempt of court.
 Power to punish a person who has committed contempt of court
inside the court (S.14).
 Power to punish a person who has committed contempt of court
outside the court (S.15).
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Contempt of Court inside the Court:

When judicial proceedings are going on, if it appears to the court that a
person is guilty of contempt of court in its presence then the court may
 Pass an order to arrest the person.
 Give a notice in writing immediately regarding the charges.
 Offer him opportunity to make his defence.
 Take such evidence as may be necessary or as may be offered by such
person and hear him.
During the trial, if the person charged with contempt applies either
orally or in writing, for a trial by some other judge (other than the judge
in whose presence the alleged contempt is committed) then the request
along with the statement of facts of the alleged contempt shall be placed
before the Chief Justice.
If the case is transferred to some other Judge then the judge in whose
presence the alleged contempt was committed need not appear as
witness. The facts submitted by him to the Chief Justice shall be taken as
evidence.
During the pendency of the proceedings, the person charged with
contempt shall be detained in such custody as the court may specify. He
may be released on bail with or without sureties or on a self bond as the
court thinks fit.
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Contempt of Court Outside the Court:

The Supreme Court or the High Court shall take action for contempt of
court committed outside the court in the following situations.
 On its own motion.
 On a petition made by the Advocate General (for High Court) or the
Attorney General or the Solicitor General (for Supreme Court).
 On a petition by any other person (if consent is given in writing to file
such petition by the Advocate General or AG or SG).
After admitting a petition the court shall follow the following procedure.
 Notice shall be sent to the person charged with contempt.
 The accused shall be allowed to submit his defence in an affidavit.
 The trial shall be conducted by a bench consisting of two judges.
 If the court feels that the person charged with contempt may abscond
then his properties shall be attached.
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Sec-3. Innocent publication and distribution of matter not

contempt
 A person shall not be guilty of contempt of court on the ground that
he has published
o any matter which interferes or tends to interfere with, or
obstructs or tends to obstruct, the course of justice in connection
with any proceeding pending at that time of publication,
o if at that time he had no reasonable grounds for believing that
the proceeding was pending.
 The publication of any such matter as aforesaid in connection with
any proceeding which is not pending at the time of publication shall
not be deemed to constitute contempt of court.
 A person shall not be guilty of contempt of court on the ground that
he has distributed a publication containing any such matter as
aforesaid, if at the time of distribution he had no reasonable grounds
for believing that it contained or was likely to contain any such
matter.
 A judicial proceeding is said to be pending in the case of a civil
proceeding, when it is instituted by the filing of a plaint or otherwise.
 A judicial proceeding is said to be pending in the case of a criminal
proceeding under the CrPC, or any other law
o if it relates to the commission of an offence, when the charge-
sheet or challan is filed, or when the court issues summons or
warrant, as the case may be, against the accused, and
o in any other case, when the court takes cognizance of the matter
to which the proceeding relates, and
 In the case of a civil or criminal proceeding, a judicial proceeding
shall be deemed to continue to be pending until it is heard and finally
decided. In a case where an appeal or revision is competent, until the
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appeal or revision is heard and finally decided or, where no appeal or
revision is preferred, until the period of limitation prescribed for such
appeal or revision has expired.
 A judicial proceeding which has been heard and finally decided shall
not be deemed to be pending merely by reason of the fact that
proceedings for the execution of the decree, order or sentence passed
therein are pending.
Sec-4. Fair and accurate reporting not contempt

 A person shall not be guilty of contempt of court for publishing a fair
and accurate report of a judicial proceeding or any state thereof.
Sec-5. Fair criticism of judicial act not contempt

 A person shall not be guilty of contempt of court for publishing any
fair comment on the merits of any case which has been heard and
finally decided.
Sec-6. Complaint against subordinate courts when not contempt-

 A person shall not be guilty of contempt of court in respect of any
statement made by him in good faith concerning the presiding officer
or any subordinate court to
 Any other subordinate court, or
 The High court to which it is subordinate.
 "Subordinate Court" means any court subordinate to a High court.
Sec-7. Publication of information relating to proceeding in
chambers or in camera not contempt except in certain cases-
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 A person be guilty of contempt for publishing a fair and accurate
report of a judicial proceedings in chambers or in camera only in the
following cases,
 Where the publication is contrary to the provisions of any
enactment for the time being in force.
 Where the court expressly prohibits the publication of all
information.
 Where the court sits in chambers or in camera for reason
connected with public order or the security of the State.
 Where the information relates to secret process, discovery or
invention which is an issue in the proceedings.
Sec-8. Other defences not affected -

 Nothing contained in this Act shall be construed as implying that any
other defence which would have been a valid defence in any
proceedings for contempt of court has ceased to be available merely
by reason of the provisions of this Act.
Sec-9. Act not to imply enlargement of scope of contempt-

 Nothing contained in this Act shall be construed as implying that any
disobedience, breach, publication or other act is punishable as
contempt of court which not be so punishable apart from this Act.
Sec-10. Power of HC to punish contempt’s of subordinate courts
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 Every High Court shall have and exercise the same jurisdiction,
powers and authority, in accordance with the same procedure and
practice, in respect of contempt’s of courts subordinate to it.
 No High Court shall take cognizance of a contempt alleged to have
been committed in respect of a court subordinate to it where such
contempt is an offence punishable under the Indian Penal Code.
Sec-11. Power of HC to try offences committed or offenders found

Outside jurisdiction
 A High Court shall have jurisdiction to inquire into or try a contempt
of itself or of any court subordinate to it, whether the contempt is
alleged to have been committed within or outside the local limits of its
jurisdiction, and whether the person alleged to be guilty of contempt
is within or outside such limits.
Sec-12. Punishment for contempt of court -

 A contempt of court may be punished with simple imprisonment for a
term which may extend to six months, or with fine which may extend
to two thousand rupees, or with both.
The accused may be discharged or the punishment awarded may be
remitted on apology being made to the satisfaction of the court.
An apology shall not be rejected merely on the ground that it is
qualified or conditional if the accused makes it bona fide.
 No court shall impose a sentence in excess of that specified in sub
section for any contempt either in respect of itself or of a court
subordinate to it.
 Where a person is found guilty of a civil contempt, the court, if it
considers that a fine will not meet the ends of justice and that a
sentence of imprisonment is necessary shall, instead of sentencing him
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to simple imprisonment, direct that the he be detained in a civil prison
for such period not exceeding six months as it may think fit.
 Punishment for the civil and criminal contempt are same. Sec-12
prescribes the punishment for contempt. Court may award any one of
the following punishments.
(i) Simple imprisonment for a term up to 6 months.
(ii) Fine which may extend to Rs.2000/-.
(iii) Both the punishment
 In Delhi Judicial Services Association v. State of Gujarat, the Supreme
Court held punishment not mentioned in S.12 can also be given for
contempt of court.
 The SC held that for contempt of court, the court cannot cancel the
Advocates right to practice. But, he shall be suspended from practice
for a fixed period.
 For the civil contempt, normally fine alone will be imposed. If the
court thinks that fine alone is not a sufficient punishment then he
shall be put in the civil prison instead of ordinary imprisonment.
Sec-13. Contempt’s not punishable in certain cases-

 No court shall impose a sentence for a contempt of court, unless it is
satisfied that the contempt is of such a nature that it substantially
interferes, or tends substantially to interfere with the due course of
justice.
 The court may permit, in any proceeding for contempt of court,
justification by truth as a valid defence if it is satisfied that it is in
public interest and the request for invoking the said defence is bona
fide.
Sec-14. Procedure where contempt is in the face of the Supreme
Court or a High Court
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 When it is alleged, or appears to the SC or the HC upon its own view,
that a person has been guilty of contempt committed in its presence
or hearing, the court may cause such person to he detained in custody,
and, at any time before the rising of the court, on the same day, or as
early as possible thereafter, shall -
 Cause him to be informed in writing of the contempt with which he
is charged.
 Afford him an opportunity to make his defence to the charge,
 After taking such evidence as may be necessary or as may be
offered by such person and after hearing him, proceed, either
forthwith or after adjournment, to determine the matter of the
charge, and
 Make such order for the punishment or discharge of such person as
may be just.
 Where a person charged with contempt as above applies to have the
charge against him tried by some Judge (other than the Judge or
Judges in whose presence or hearing the offence is alleged to have
been committed), and the court is of opinion that it is practicable to
do so and that in that interest of proper administration of justice the
application should be allowed.
 In any trial of a person charged with contempt under this section by a
Judge other than the Judge or Judges in whose presence or hearing the
offence is alleged to have been committed, it shall not be necessary for
the Judge or Judges in whose presence or hearing the offence is
alleged to have been committed to appear as a witness and the
statement placed before the Chief Justice shall be treated as evidence
in the case.
 Pending the determination of the charge, the court may direct that a
person charged with contempt under this section shall be detained in
such custody as it may specify.
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 In case of contempt in the face of subordinate court, the sub-court
may take action under 228 of IPC. Section 14 of Contempt Act is not
applicable.
Sec-15. Cognizance of criminal contempt in other cases-

 In the case of a criminal contempt, other than section 14, the SC or HC
may take action on its own motion or on a motion made by:
 the Advocate-General, or
 any other person, with the consent in writing of the AG/SG,
 in relation to the High Court for the Union territory of Delhi, such
Law Officer as the Central Government may, specify in this behalf,
or any other person, with the consent in writing of such Law
Officer.
 In the case of any criminal contempt of a subordinate court, the HC
may take action on a reference made to it by the subordinate court or
on a motion made by the Advocate-General.
 In this section, the expression “Advocate-General” means:
 in relation to the Supreme Court, the Attorney-General or the
Solicitor-General;
 in relation to the High Court, the Advocate-General of the State;
 Section 15 relates to contempt otherwise than in the face of High
Court and Supreme Court.
Sec-16. Contempt by judge, magistrate or other person acting

judicially:
 A judge, magistrate or other persons act in judicially shall also be
liable for contempt of his own court or of any other court in the same
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manner as any other individual is liable and the provisions of this Act
apply accordingly.
 Nothing in this section shall apply to any observations or remarks
made by a judge, magistrate or other person acting judicially,
regarding a subordinate court in an appeal or revision pending before
such judge, magistrate or other person against the order or
judgement of the subordinate court.
Sec-17. Procedure after cognizance-

 Notice of every proceeding under Section 15 shall be served on the
person charged, unless the court directs otherwise.
 The notice shall be accompanied-
 In the case of proceedings commenced on a motion, by a copy of
the motion as also copies of the affidavits, if any, on which such
motion is founded and,
 In case of proceedings commenced on a reference by a subordinate
court, by a copy of the reference.
 Any person charged with contempt under Section 15 may file an
affidavit in support of this defence, and the court may determine the
matter of the charge either on the affidavits filed or after taking such
further evidence as may be necessary, and pass such order as the
justice of the case requires.
Sec-18. Hearing of cases of criminal contempt to be by Benches

 Every case of criminal contempt under section 15 shall be heard and
determined by a Bench of not less than two Judges.
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Sec-19. Appeals
 An appeals shall lie as of right from any order to decision of High
Court in the exercise of its jurisdiction to punish for contempt-
 Where the order or decision is that of a single judge, to a Bench of
not less than two Judges of the Court.
 Where the order or decision is that of a Bench, to the Supreme
Court.
 Pending any appeal, the appellate court may order that-
 The execution of the punishment or order appealed against be
suspended
 If the appellant is in confinement, he be released on bail, and
 The appeal be heard notwithstanding that the appellant has not
purged his contempt.
 An appeal shall be filed
 In the case of an appeal to a Bench of the High Court, within thirty
days.
 In the case of an appeal to the Supreme Court, within sixty days.
Sec-20. Limitation for actions for contempt -

 No court shall initiate any proceedings of contempt after the expiry of
a period of one year from the date on which the contempt is alleged to
have been committed.
Sec-21. Act not to apply to Nyaya Panchayatas or other village
courts-
Sec-22. Act to be in addition to, and not in derogation of, other

laws relating to contempt
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 The provisions of this Act shall be in addition to, and not in derogation
of the provision of any other law relating to contempt of courts.
Sec-23. Power of Supreme Court and High Court to make rules-

 The Supreme Court or, a the case may be, any High Court, may make
rules, not inconsistent with the provisions of this Act, providing for
any matter relating to its procedure.
CONSTITUTION OF INDIA
129. The Supreme Court shall be a court of record and shall have all the
powers of such a court including the power to punish for contempt of
itself.
215. Every High Court shall be a court of record and shall have all the
powers of such a court including the power to punish for contempt of
itself.
Contempt by Advocates:
In the contempt of court Act, there is no special privilege for Advocates. A
contempt of court committed by an Advocate will be dealt with just like a
contempt committed by any other person.
Instances of contempt by lawyers

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 Insulting/abusive language against a judge or shouting at judge
 Scandalous allegations against judge
 Suppressing facts to obtain favorable orders
 Hurling shoes against a judge
 Imputation of partiality, unfairness or corruption against the judge
 Advising client to disobey the court's order
 Refusal to answer court's questions
 Casting unwanted aspersion or attributing motives
 Intimidating judge to get favorable order
 Allegations made in transfer petition may amount to contempt
Contempt by Judicial Officers

The object of contempt law is not to safeguard the judge personally but
to safeguard the seat of justice and if the seat of justice is brought into
disrepute in the eyes of public by the judge himself he will be held liable
for the contempt of his own court.
Any person who interferes with the admin of justice is held liable for the
contempt and it makes no difference whether he is a judge, lawyer,
minister or common man.
Contempt proceedings not maintainable against SC/HC Judges.
Instances of contempt by Judge
 Ordering a lawyer to leave court without reason
 Refusal to follow law laid down superior court
 Willfully disobeying the order of superior court
 Willful usurpation of jurisdiction unless the judge believed in good
faith to have the jurisdiction
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 If his act amounts to scandalizing or lowering the authority of court
 Attributing bias to high court judges
 Accepting bribe
Sec16 of the Act deals with contempt by judges, Magistrates and other
persons acting Judicially. According to this section these persons are also
liable for contempt of his own court or any other court just like an
ordinary individual.
Observation or remark made by a Judge regarding a subordinate court in
an appeal or revision pending before him shall not be treated as
contempt of court.
In State of Rajasthan v. Prakash Chand the Supreme Court held that Sec-
16 has no application against the judges of the High Court and the
Supreme Court. So they cannot be punished for contempt of court.
In B.K.Mishra v. Bhemsen Dixit the Supreme Court held that refusal to
follow the decision of the High Court or the Supreme Court by a
subordinate court amounts to contempt of court.
Contempt Liability of State, Corporate and their officers

 State is not immune from contempt. If the court is satisfied that the
officer had knowledge of the order and it was his duty to implement
the order he will be held liable. In case of any doubt he should apply
for modification or clarification.
 Kalyan Singh was sentenced one day's token imprisonment in Md
Aslam v UoI.
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 If an order is passed against an officer, his successor is also bound.
 In case of corporation, the officer responsible for the conduct of its
operation is held liable if he had knowledge of the order.
 Directors and other officers of company are liable.
 Section 12(4) and 12(5) provides for the liabilities of company's
officers.
 Every person who, at the time the contempt was committed, was in
charge of, and was responsible to, the company for the conduct of its
business as well as the company shall be deemed to be guilty of the
contempt.
 Any such person shall not be liable to such punishment if he proves
that the contempt was committed without his knowledge or that he
exercised all due diligence to prevent its commission.
 If it is proved that the contempt has been committed with the consent
or connivance of, or is attributable to any neglect on the part of, any
director, manager, secretary or other officer, then such person shall
also be deemed to be guilty of the contempt.
 Company" means any body corporate and includes a firm or other
association of individuals; and "director", in relation to a firm, means
a partner in the firm.
 Corporate veil shall be lifted in such cases.
Bar Bench Relations
The court hall where cases are conducted consists of two parts namely:
(i) The place where the judges sit is called as Bench
(ii) The place where the Advocate sit is called as Bar.
So the term Bench refers to the judges and the Bar refers to the
Advocates. Bar-Bench relation means the cordial relation between the
judges and the Advocates.
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The faith on the judiciary to the general public and the speedy justice
mainly depends on the cordial relation between the judges and the
advocates. In the administration of justice the role of advocates are also
equally important just like the judges. Rendering justice is their joint
responsibility. Without the help of Advocates, it is very difficult for the
judges to arrive a correct decision in a dispute.
If good relation exists between the judges and Advocates then delay in
rendering justice and high expenses for getting justice can be very much
reduced. To strengthen the good relation both have mutual
responsibilities.
Role of the Bar to Strengthen Bar-Bench Relation

 They should give the due respect to the judges and they must avoid
speaking ill of the judges and the judiciary.
 They should help the judges in the trial by presenting the
relevant law in the correct and clear manner. They should never
act in such away to irritate the judges.
 If the judges pronounces a wrong order, they should not criticize the
judges. They should try to set right the wrong order through
appeal.
 For getting favourable order they should not give pressure or
influence the judges.
 If the judges behavior is irritating and disrespect, the Advocates
should not enter in to a direct confrontation with the judge.
The Bar Association should discuss the matter with the judge in his
chamber and shall request to avoid such misbehavior .
 Lawyers are officers of the court. Partner with the judiciary in the
admin of justice.
 Lawyers must maintain respectful attitude towards court bearing in
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mind the dignity of judge is essential.
 Private communication with judge regarding a pending case is
prohibited.
 Not mere mouthpiece of his client.
 Best effort to restrain and prevent his client from using unfair
practices
 Must not misguide the judge. However, he is not servile and it is also
duty to report improper conduct of judge to superior court.
Role of the Bench to Strengthen Bar –Bench Relation

 Judicial Respect:
 Patient Hearing:
 Impartiality:
 Avoidance of Interruptions:
 Proper Interpretation:
 Avoidance of Unreasonable Adjournments:
 Speedy Disposal:
 Avoiding Unwarranted comments:
 Knowing in Law:
 Independence:
 Integrity:
 Industriousness:
 Meeting of Judges and Lawyers:
Judicial Respect: Just like the Advocates are giving respect to the Judges
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the Judges should also give to the Advocates and the brethren Judges.
Patient Hearing: Judges should hear the case with open and respective
mind without any prejudice or bias. They should act only to the interest
of justice. They should give sufficient opportunity for the Advocates to
fully present the case.
Impartiality: Judges should act impartially. They should not act in
favour of any Advocate or a party to the dispute.
Avoidance of Interruptions: As far a possible, Judges must avoid
interruptions while the Advocate is examining witnesses and arguing the
case.
Unwarrented interference and adverse comments by the Judges may
upset the Advocates and thereby he may not be able to present the case
properly. This may cause the failure of justice.
Interference may be limited to the following circumstances(i)to prevent
repetition and waste of time(ii)to check the relevancy(iii)to get
clarifications (iv)to express courts view on a point and (v)to promote
speedy disposal of the case.
Proper Interpretation: During the process of administration of justice,

often the courts have to interpret the Act, Rules, Orders and Notifications
in order to ascertain the actual meaning of the provisions or to remove
the ambiguity or inconsistency. In such cases proper interpretation
should be given with the object of rendering complete justice to the
parties.
Avoidance of Unreasonable Adjournments: Adjournments are given
to afford reasonable opportunity to the parties to present the case. As far
as possible cases shall not be adjourned without reasonable and
sufficient grounds. Unreasonable adjournment is the main reason for the
mounting arrears of cases and it causes hardship to the parties.
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Speedy Disposal: `Justice delayed is justice denied’, hence cases should
be disposed off as quickly as possible. When preference is given for
disposal of old cases, care should be given to see that new cases should
not get into arrears.
Avoiding Unwarranted comments: Judges should not make any
unwarranted comments in the open court about the Advocates lack of
knowledge in the law. They should not ask any Advocate to leave the
court, without sufficient reasons. Similarly, they should not ask any
Advocate not to come to his court hereafter.
Knowing in Law: Judges should possess deep knowledge in law. They
should have the ability to apply the proper law to the disputed facts and
to take the right decision.
Independence: Judges have the primary responsibility to protect and
preserve the independence of judiciary, hence they should not yield to the
pressure of the Government.
Integrity: A Judge should be honest and morally upright. He should have
personal and intellectual integrity. His character and conduct should be
praise worthy. Then only the Advocates and the general public will have
confidence on him.
Industriousness: It means regular and systematic hard work and study.
A Judge should get acquainted with the latest developments and changes
in the law by regular updating of the knowledge.
Meeting of Judges and Lawyers: To strengthen Bar-Bench relation, at
regular intervals meeting of judges and the Advocates shall be arranged.
In such meetings the respective sides difficulties can be discussed and the
differences can be sorted out.
Importance of Legal Profession in India

 Bar and Bench two wheels of justice
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 Administration of Justice
 Assisting the judge in arriving at correct judgment
 Collects and provides legal material to court
 Presents relevant facts before court
 Law is very complicated
 Professional advice to clients whether to proceed
 Not puppets of clients
 Responsible to the court for the fair and honest conduct
 Maintenance of peace and order in society
 Justice is the highest thing desired by men on earth
 Important role in law reform
 Drafting of laws
 An officer of court
Page 57 of 57

Ethics Notes Law

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Ethics Notes - law

bachelor of law (Noida International University)

Studocu is not sponsored or endorsed by any college or university

PROFESSIONAL ETHICS NOTES

IMPORTANCE OF LEGAL PROFESSION

PROFESSIONAL ETHICS NOTES

QUALIFICATIONS FOR ENROLLMENT AS AN ADVOCATE

o Person must have completed the age of 21 years:

o Person must be law graduate from any university recognized by

PROFESSIONAL ETHICS NOTES

DISQUALIFICATIONS FOR ENROLLMENT AS AN ADVOCATE

o If the person is held guilty under The Protection of Civil Rights

PROFESSIONAL ETHICS NOTES

OTHER PRIVILEGES OF ADVOCATES

PROFESSIONAL ETHICS NOTES

STATE BAR COUNCIL - ESTABLISHMENT AND FUNCTIONS

PROFESSIONAL ETHICS NOTES

PROFESSIONAL ETHICS NOTES

BAR COUNCIL OF INDIA

PROFESSIONAL ETHICS NOTES

PROFESSIONAL ETHICS NOTES

Section 5. Bar Council to be body corporate.

o having perpetual succession, and

o to contract, and sue and be sued.

Section 10B. Disqualification of elected members of Bar Council.

PROFESSIONAL ETHICS NOTES

Section 15. Power to make rules.

PROFESSIONAL ETHICS NOTES

PROFESSIONAL ETHICS NOTES

PROFESSIONAL ETHICS - MEANING, NATURE, AND NEED

PROFESSIONAL ETHICS NOTES

Nature of Professional Ethics

PROFESSIONAL ETHICS NOTES

ADVOCATE’S DUTY TOWARDS THE CLIENT

PROFESSIONAL ETHICS NOTES

PROFESSIONAL ETHICS NOTES

IMPORTANT CASES ON DUTY TO CLIENT

PD Gupta v. Ram Murthi (SC)

PROFESSIONAL ETHICS NOTES

TC Mathai v. District Judge (SC)

RD Saxena V. Balram Prasad Sharma

Harish Chandra Tiwari Versus Baiju (SC)

DETAILED RULES ON DUTY TO CLIENTS

PROFESSIONAL ETHICS NOTES

2. Not withdraw from service

3. Not appear in matters where he himself is a witness

4. Full and frank disclosure to client

PROFESSIONAL ETHICS NOTES

6. Not suppress material or evidence

7. Not disclose the communications between client and himself

8. An advocate should not be a party to stir up or instigate

9. An advocate should not act on the instructions of any person

10. Not charge depending on success of matters

PROFESSIONAL ETHICS NOTES

11. Not receive interest in actionable claim

12. Not bid or purchase property arising of legal proceeding

13. Not bid or transfer property arising of legal proceeding

PROFESSIONAL ETHICS NOTES