Punishments for professional misconduct

Vande Matram! In this article, I am discussing, punishments for professional misconduct of an Advocate which is in the light of the Bar Council of India rules, and the Advocates Act, 1961. Let’s begin.

Punishments for professional misconduct:

Introduction:

As stated by Justice K. Ramaswamy, any improper or wrongful behaviour which is unlawful in nature and is done deliberately by a professional person, can be considered professional misconduct. Further, performing any forbidden act or a transgression of established and definite rule of action or code of conduct may lead to professional misconduct. Though Advocates Act 1961 is silent on the definition of professional misconduct it empowers the Disciplinary Committee of a bar council to punish an advocate for his professional misconduct. As per Section 9 of the Act every bar council has to establish at least one disciplinary committee, which will look after the matters related to the professional misconduct of an advocate on receiving a complaint against him. Section 35 gives for the punishments for the professional misconduct of an advocate. Section 35 of Advocates Act, 1961 is produced and discussed here:

35. Punishment of advocates for misconduct.―(1) 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 its disciplinary committee.

On receipt of a complaint against an advocate for his professional misconduct, State Bar Council has to refer it for disposal to its disciplinary committee.

(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.

As per Section 9, a state bar council can establish more than one disciplinary committee. State bar council can withdraw a proceeding pending before one disciplinary committee and refer that matter for further proceedings and inquiry to its other disciplinary committee. Such transfer of matters can be done by State Bar Council on its own motion or on an application by the person interested in such matter.

(2) The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State.

As the disciplinary committee is intimated about a complaint, it has to decide a date for a hearing of that matter. A notice of hearing must be given to the advocate concerned as well as a copy must be forwarded to the Advocate-General of the State. Such notice of hearing gives the concerned advocate a fair chance of being heard, which is following principles of natural justice.

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:―

(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates.

After the hearing is conducted the disciplinary committee can pass any of the following orders:

1. Dismiss the complaint: If a complaint is done by any random person against an advocate for his professional misconduct, then after hearing both sides of the matter, the disciplinary committee can dismiss the complaint by giving its orders depending upon the case.

2. Direct that the proceedings be filed: Sometimes State Bar Council on its own, initiates initiate the proceedings against professional misconduct of an advocate, in such cases disciplinary committee can direct that the proceedings are filed and further actions may be taken.

3. Reprimand the advocate: Disciplinary committee can inform strongly and formally that he/she had done such an act which is unethical in the norms of advocacy professional ethics and can further give a statutory warning to that advocate not to repeat the same in the future.

4. Suspension of advocate: Disciplinary committee can suspend an advocate for a specific time as it may deem fit. Due to such suspension, the advocate is not allowed to practice the legal profession anywhere in India during his suspension period.

5. Remove the name of the advocate from the state roll of advocates: This is a permanent ban on that advocate and he is not allowed to practice the legal profession anywhere in India during his lifetime.

(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India.

(5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

Explanation.―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.

Thus disciplinary committee of the State Bar council can punish an advocate if a complaint is filed against him or State Bar Council on its own motion initiates proceedings against him.

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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