Complaint against an advocate for professional misconduct

Vande Matram! In this article, I am discussing, how a complaint can be filed against an advocate for his professional misconduct which is in the light of the Bar Council of India rules, and the Advocates Act, 1961. Let’s begin.

Introduction:

Advocacy is a noble profession and to maintain its nobility each advocate has to follow the professional ethics prescribed by BCI in Chapter II of Part IV of BCI rules in the light of Section 49 of Advocates Act, 1961. If any professional misconduct is encountered by an advocate then a complaint can be filed against that advocate in front of the respective State Bar Council, where he is enrolled. Further such complaint is heard by the disciplinary committee of that bar council.

Disciplinary Committee:

Section 9 of the Advocates Act provides for the formation of a disciplinary committee by the bar council. Section 9 is produced and discussed here:

9. Disciplinary committees.―(1) A Bar Council shall constitute one or more disciplinary committees, each of which shall consist of three persons of whom two shall be persons elected by the Council from amongst its members and the other shall be a person co-opted by the Council from amongst advocates who possess the qualifications specified in the proviso to sub-section (2) of section 3 and who are not members of the Council, and the senior-most advocate amongst the members of a disciplinary committee shall be the Chairman thereof.

(2) Notwithstanding anything contained in sub-section (1), any disciplinary committee constituted prior to the commencement of the Advocates (Amendment) Act, 1964 (21 of 1964) may dispose of the proceedings pending before it as if this section had not been amended by the said Act.

According to provisions of Section 9, every bar council has to constitute at least one disciplinary committee. It can establish more than one disciplinary committee as and when needed.

Every disciplinary committee has three members: a) two of the members are the members of the bar council who are elected by the bar council, b) an advocate having 10 years of experience.

The Chairman of the disciplinary committee is decided based on the seniority of the three members.

Procedure to file a complaint against an advocate:

There is no prescribed procedure of complaint against an advocate for his misconduct in the Advocates Act, 1961. But it is prescribed in BCI rules.

A complaint against an advocate needs to be filed through the mode of a petition. It is to be duly signed and verified as needed under the Code of Civil Procedure. A complaint is often filed either in English or Hindi or, in any regional language where the language has been declared to be a state language to the State Bar Council.

If the complaint in Hindi or regional language is further referred to the disciplinary committee of BCI, then it should be translated into English for further proceedings in front of the disciplinary committee of BCI.

It is necessary to pay prescribed fees to file a complaint in the bar council.

Complainant has to cater any defects and provide copies of the relevant documents needed. For catering to the defects and providing copies of relevant documents a time is fixed. Complainant has to fulfill all these requirements within that fixed time.

Procedure after receipt of a proper complaint against an advocate for his professional misconduct:

After that, the complaint is referred to the disciplinary committee of that bar council which issues a notice to the advocate, against whom the complaint is filed. That advocate will be given a fair chance to file a statement of defence, copies of relevant documents, and affidavit within a stipulated time and hearing is conducted.

If the advocate is not present on the date of the hearing, then the hearing can be conducted in his absence. An appearance usually includes the presence of an advocate or through a duly authorized representative.

The Chairman of the Disciplinary Committee will fix the date, hour, and place of the inquiry. This date won't ordinarily be later than thirty days from the receipt of the reference. The Registrar is responsible for giving notice of the date, hour, and place to the complainant or other person aggrieved, the advocate concerned, the Attorney General or the extra lawman of India or the Advocate General, in simple language, to whom so ever, the case is concerned.

The notices could also be sent ordinarily through messenger or by registered mail and served on the advocate or the party concerned or his agent or another person as provided in the Civil Procedure Code. Notice to a celebration not appearing by the advocate shall be sent to the address as furnished within the complaint or the grounds of appeal. The value of the notices shall be borne by the complainant unless the Disciplinary Committee otherwise directs.

If in an inquiry on a complaint received, either the complainant or the respondent does not appear before the Disciplinary Committee despite service of notice, the Committee may proceed ex-parte or direct fresh notice to be served.

Any such order for proceeding ex-parte could also be put aside on sufficient cause being shown, when an application is formed supported by an affidavit, within 60 days of the passing of the ex-parte order. The provisions of Section 5 of the Limitation Act, 1963 shall apply to the present sub-rule.

Thus the proceedings take place in front of the Disciplinary Committee. If an advocate is proved to be guilty of professional misconduct, then the Disciplinary committee can punish him as per the provisions of Section 35 of the Advocates Act, 1961.

Disposal of disciplinary proceedings:

Section 36B of the Advocates Act, 1961 provides for the procedure of disposal of the complaints of professional misconduct by the disciplinary committee, which is produced and discussed as follows:

36B. Disposal of disciplinary proceedings.―(1) The disciplinary committee of a State Bar Council shall dispose of the complaint received by it under section 35 expeditiously and in each case the proceedings shall be concluded within a period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council, as the case may be, failing which such proceedings shall stand transferred to the Bar Council of India which may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-section (2) of section 36.

As per Section 36B(1), The disciplinary committee of a State Bar Council has to dispose of the complaints received with efficiency and speed.

In each case, the procedure must be concluded within a period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council.

If proceedings are not concluded within one month, then the matter shall stand transferred to BCI.

BCI can dispose of such complaints as they were the proceeding withdrawn for inquiry same as under Section 36(2).

(2) Notwithstanding anything contained in sub-section (1), where on the commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), any proceedings in respect of any disciplinary matter against an advocate is pending before the disciplinary committee of a State Bar Council, that disciplinary committee of the State Bar Council shall dispose of the same within a period of six months from the date of such commencement or within a period of one year from the date of the receipt of the complaint or, as the case may be, the date of initiation of the proceedings at the instance of the State Bar Council, whichever is later, failing which such proceedings shall stand transferred to the Bar Council of India for disposal under sub-section (1).

The provisions in Section 36B(2) apply to the complaints made before the enactment of the Advocates (Amendment) Act, 1973 (60 of 1973).

Thus the disciplinary committee has to complete the proceedings on the complaints received against an advocate for his professional misconduct within one year otherwise it will stand referred to BCI. BCI further will dispose of these types of complaints as if they are to be withdrawn.

Note: Part in Red words is part of Bare Act – Advocates Act, 1961.

If you want to know about specific provisions of the Advocates Act, 1961 and the Bar Council Rules then let me know in the comments below.

To know the references and to read more articles related to Professional ethics and professional accounting system please visit this page Legal Profession: Professional Ethics and Professional accounting system.

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