P J Ratnam Vs D Kanikram, AIR 1964 SC 244

 

Vande Matram! Here a case regarding the professional misconduct of an advocate is discussed.

Appellant: P J Ratnam, Advocate

Vs

Respondent: D Kanikarma and other, Clients of P J Ratnam

Facts of the case:

Acts: Legal practitioners Act, 1879 (18 of 1879), Indian Bar Councils Act, 1926.

The respondents and one other Kagga Veeraiah, were plaintiffs in a suit for possession of certain lands and the appellant was their Advocate.  This suit was dismissed by the trial court and an appeal was preferred therefrom to the Subordinate Judge. Pending the disposal of the appeal, the court directed the sale proceeds of the standing crops on the suit land to be deposited into court, and a sum of Rs. 1,600/- was so deposited. The plaintiff's appeal was allowed and the defendants preferred a second appeal to the High Court. Pending disposal of the second appeal, the plaintiff's application for withdrawing the amount was allowed by the court on furnishing security of immovable property. A cheque petition was filed which was allowed and thereafter a cheque for Rs. 1,452/4/- was issued in favour of the appellant. The appellant an Advocate admitted that he had received and had cashed the cheque on behalf of his clients who were entitled to be paid this sum. The second appeal was allowed by the High Court and the plaintiff's suit was dismissed, as a result of which the plaintiffs had to refund the sum of the defendants in the suit. The plaintiffs made a written demand on the appellant for the proceeds of the cheque that had been cashed by him and not paid over to them. The appellant in reply claimed to have paid over the sum to them on their passing a receipt which happened to be in the bundle of case papers returned to them. The respondents filed a complaint under ss 12 and 13 of the Legal Practitioners Act. 

The explanation of the Advocate was called for and the District Judge was directed to hold an enquiry and forward his report to the High Court. His report was that the appellant’s case was not unbelievable and he was entitled to the benefit of doubt. The matter was heard by a Bench of three Judges of the High Court, who held him guilty of professional misconduct and suspended him for five years from practice. 

In this Court, the appellant contended,

(1)  That the Bar Council had not been consulted before the case was referred to the learned District Judge for inquiry and report and this vitiated the legality of the entire proceedings against the appellant. 

(2) That the complaint filed by the respondents on the basis of which action was taken against the appellant was not shown to have been signed by them, nor properly verified by them as required by the rules of the High Court.

(3) That as in substance the charge against the appellant was misappropriation of moneys belonging to the clients; the High Court should have left the complainants to their remedy of prosecuting the appellant and should not have proceeded to deal with him under s. 10 of the Bar Councils Act.

(4) That there was a procedural irregularity in the mode in which the case against the appellant was conducted.

(5) That one of the plaintiffs--Kagga Veeraiah had himself admitted in his evidence that he and others had received the proceeds of the cheque which the appellant had cashed and that in the face of this admission the High Court was clearly wrong in finding that the appellant had failed to pay over the money to his clients.

Held (1) that the fact that in the order of reference of the proceedings under s. 10(2) of the Bar Councils Act, to the District Judge, there is no explicit statement that the Bar Council had previously been consulted, is not decisive on the point. There would be a presumption of regularity in respect of official and judicial acts and it would be for the party who challenges such regularity to plead and prove his case.  Since, this objection was not raised in the High Court, even when the appellant applied for a certificate, this Court will not entertain this objection which rests wholly upon a question of fact.

(2) The complaint petition had been signed by the respondents and properly verified and even otherwise since the High Court was competent to initiate these proceedings suo motu under s. 10(2) of the Act, the point raised is wholly without substance.

(3) There is a clear distinction between cases where the misconduct is one in relation to the practitioner's duty to his client and other cases where it is not so. In the former class of cases, the court would be exercising its discretion properly if it proceeded to deal with the charge as a piece of professional misconduct without driving the complainant to seek his remedy in a criminal court far as the facts and circumstances of the present case are concerned, it must be held, that the High Court was fully justified in proceeding against the appellant under the provisions of s. 10 of the Bar Councils Act. Chandi Charan Mitter a Pleader, In re. (1920) I.L.R. 47 Cal.  1115 and Emperor v. Satish Chandra Singha, (1927) I,L.R. 54 Cal. 721, distinguished. Stephens v. Hills, [1842] 152 E.R. 368, referred to class.

(4) No complaint, that the appellant was prejudiced by the manner in which the inquiry was conducted in the matter of the order in which the evidence was adduced, was made either before the District Judge or before the High Court and there is nothing on the record to suggest that any prejudice had occurred to the appellant.

(5) The evidence of Kagga Veeraiah was correctly characterised by the High Court as devoid of truth and the appellant, therefore, cannot rely on any admission of this witness as evidence of the plaintiffs having received the sum.

Having regard to the gravity of the offence, there is no justification for reducing the period of suspension. The appeal, therefore, must be dismissed.

Opinions of Supreme Court:

1) Nature of jurisdiction of Court: “The jurisdiction exercised by the High Court in cases of professional misconduct is neither civil nor criminal as these expressions are used in Arts. 133 and 134 of the Constitution. In one aspect it is a jurisdiction over an officer of the Court and the Advocate owes a duty to the Court apart from his duty to his clients. In another aspect it is a statutory power and we would add a duty vested in the Court under s. 10 of the Bar Councils Act to ensure that the highest standards of professional rectitude are maintained, so that the Bar can render its expert service to the public in general and the litigants in particular and thus discharge its main function of co-operating with the judiciary in the administrance of justice according to law.”

2) “The object of a proceeding in respect of professional misconduct differs totally from the object of a proceeding in a criminal court.”

Punishments:

1) At High Court: High Court suspended Adv P for five years from practice.

2) Supreme Court: Supreme Court dismissed the appeal and Adv P was suspended for five years from practice for misappropriation of money of his clients.

Final Verdict of Supreme Court:

The appeal fails and is dismissed.

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In the matter of D, an Advocate AIR 1956 SC 102

Vande Matram! A judgment is discussed in this article.

In the matter of D, an Advocate AIR 1956 SC 102

Court: Supreme Court of India.

Facts of the matter:

1) Adv. D was an enrolled advocate of Bombay High Court. And thus he was having the right to practice in any court of the Union of India.

2) He was prosecuted before the Presidency Magistrate of Bombay for the charge under the Bombay Prohibition Act. He was convicted by the Presidency Magistrate. Also Presidency Magistrate in his report regarding the conduct of Adv D as an advocate.

3) Adv D went up on appeal to the High Court.

4) High Court on the report of Presidency Magistrate constituted a Bar Council Tribunal of Three Members. This tribunal called an inquiry regarding the conduct of Adv D as an advocate.

5) Adv D made an application under Article 227 to High Court for quashing the proceedings conducted by the bar council tribunal for want of jurisdiction. Adv D pleaded that Tribunal had no jurisdiction to enter upon the inquiry of the misconduct complained of was not committed by him in his capacity as an Advocate. But this application was rejected by High Court.

6) Adv. D forwarded an unconditional apology letter. In that letter, he admitted that statements in the report of the Presidency Magistrate are correct except for two of them. Tribunal held that the mere conviction of the respondent under the Prohibition Act did not amount to professional or other misconduct under Section 10 of the Indian Bar Councils Act and, therefore, found him not guilty of the charge of professional misconduct with a recommendation to take notice of the conduct of Adv. D. And report of this inquiry was submitted to the Bombay High Court.

7) In the final hearing of the appeal at High Court took the view that the misconduct of the respondent was so serious and so grave that a deterrent punishment must be imposed on him. High Court convicted Adv D for his unworthy conduct as an advocate during proceedings in front of Presidency Magistrate and Bar Council Tribunal.

8) Adv. D appealed in Supreme Court for the judgment of the High Court regarding his conduct as an advocate. Adv D in his petition in Supreme Court pleaded that the Report of Presidency Magistrate is a highly exaggerated, garbled, and manifestly incorrect version of the incidents that occurred during the trial of the case.

Observations of the Supreme Court:

“It is needless for us to emphasise that a person holding the responsible position of an Advocate of a High Court and of this Court cannot be permitted to play with the Court in the way this Advocate has done. He admitted the correctness of the report, confessed his guilt, and tendered an unconditional apology evidently in the hope that he would get away with it by merely tendering an apology. Finding that the tactics did not work with the High Court as he expected the same to do, he now wants to charge his tactics by asking for an inquiry which he had himself avoided by means of his admission and apology.”

Further, the court observed that “The conduct of the respondent in the criminal trial was, as pointed out by the High Court, entirely indefensible by any standard. It discloses a continuous and persistent attempt on the part of the respondent to be rude to and contemptuous of the Magistrate, to hold up the trial, and to do everything in his power to bring the administration of justice into contempt. Such conduct, in our opinion, merits severe condemnation.”

Thus the professional misconduct of Adv D was proved, which was vague and unethical as an advocate.

Punishments:

Adv D was sentenced at all the levels of the case

a) Presidency Magistrate: One month of rigorous imprisonment with a fine.

b) Bar Council Tribunal: No punishment pronounced but recommended to notice the behavior of Adv D.

c) High Court: Suspension of practice in High Court for one year.

d) Supreme Court: Suspension of practice in all Courts throughout the Union of India for one year.

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Elementary aspects of bookkeeping

Vande Matram! In this article, I am discussing, elementary aspects of bookkeeping in the legal profession.

Introduction:

Though the legal practice is not a money-oriented profession, there are a lot of transactions incurred by an advocate on daily basis regarding various cases he is looking after. Such transactions must be recorded efficiently and this recording is nothing but book-keeping. Book-keeping is a process of recording business transactions in the books of accounts in a very systematic manner. All the transactions are recorded date-wise. In India, this system of book-keeping was in Operation from the 23rd century ago at the time of Chandragupta Maurya. Chanakya was recording the accounting transactions. He wrote a famous book known as “Arthashastra”. Bookkeeping practices must be defined and tracked, so it does not distract Lawyers' billable time.

Meaning of bookkeeping:

Bookkeeping is the term used to record all business transactions in a law firm including financial transactions, sources of business revenue, profits, purchases, receipts, payments, reimbursements, and expenditures.

Many scholars have defined the term ‘book-keeping’ in their own way as follows:

1) J. R. Batliboi:  Book-keeping is an art of recording business dealing in a set of books".

2) R.N. Carter: "book-keeping is the science and art of correctly recording in the books of accounts, all those businesses transactions that result in a transfer of money's worth."

3) Spicer & Pegler: Book-keeping is the systematic recording of the transactions in a manner enabling the financial relationship of a business with other persons to be clearly disclosed and the cumulative effect of the transactions on the financial position of the business itself can be correctly ascertained.

4) Richard E. Strahelm: “The art of analyzing and recording business transactions, reporting the result of business operations through periodic statements and integrating such result for purposes of effective control of future operations."

5) Notch Cott - “Book-keeping is an art of recording in the books of accounts the monetary aspects of commercial or financial transaction."

Need of book-keeping by an advocate:

A businessman or a professional cannot remember each and every transaction without keeping account books regularly. He cannot also claim or recover any amount even though due from the other customer, client, or businessman. An advocate has to accurately manage the flow of money in and out and maintain a complete and precise record of all transactions.

This book can be used as a record for the settlement of fees with clients.

Having accurate monthly financial records helps advocate being aware of the balance of fees with a client, income, and expenses.

Also, in the matter of any professional misconduct, such a book can save the advocate as that book can show all the records of transactions.

Every advocate needs to keep a regular account which has certain evidentiary value also under the Indian Evidence Act, 1972.

The same book can be helpful in the income tax return as well as a professional tax return.

Principles of Book-Keeping

Tracking Every Activity: This includes tracking the hours devoted to clients, billing them for those hours, and keeping track of their payments when being received. The main point is to be accurate in tracking and simply not to let anything slip through.

Tracking Every Expense: Many transactions are incurred when an advocate is working for his client. Tracking all the expenses on such transactions is a must. These must be reported correctly.

Recording in Ledgers: Bookkeeping ledgers hold financial accounts and transactions. For every client, a separate page must be assigned in the ledger and all the transactions regarding expenses and fees received must be recorded in it. Ledger provides a summary of income and expenses, regularly and serves as the authoritative source of data for financial accounting reports.

Thus bookkeeping is necessary to fulfill duties towards the clients by an advocate. Also, bookkeeping helps in the easy assessment of accounts with clients at the time of settlement of fees and it is having an evidentiary value also.

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Accountancy for an advocate: Rules and need

 

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

Introduction:

The legal profession is ethical, and though it is not a money-making business still various transactions are encountered while dealing with a matter of a client. An advocate must keep a record of all the transactions related to a matter and disclose these transactions to the relevant client at the end of the case. Hence accountancy is necessary for an advocate. Advocates Act is silent on such account keeping but the Bar Council of India rules state the rules for accountancy for an advocate.

Bar Council of India rules for accountancy:

It is the duty of an advocate towards his client that he should maintain an account of his client. The rules of such accounting are dealt with in rules 25 to 32 of the Bar Council of India Rules 1975. The rules are as follows:

Rule 25: An advocate should keep the accounts of the client’s money entrusted to him. The accounts should show the amounts received from the client, the expenses incurred for him and the debits made on the account of Advocate fees with the respective dates and all other necessary particulars.

The account of a client will have entries regarding fees paid by the client, expenses done by the advocate regarding his case, and the date of all such transactions. These entries should be clear.

Rule 26: Where moneys are received from the client, it should be entered whether the amount have been received for the advocates fees or expenses. Amount received for the expenses shall not be diverted towards Advocates fees without the consent of the client in writing.

The client can give money on account of expenses to be done for his case or on account of the fees of the advocate. The money given by the client should be entered in the account book and each entry should have the purpose mentioned for such transaction.

Rule 27: Where any amount is received on behalf of his client the fact of such receipt must be intimated to the client as early as possible.

In any case, if an advocate receives any money on behalf of his client, then the advocate must inform about this transaction to his client as early as possible.

Rule 28: After the completion of the proceeding, the advocate shall be at the liberty to take the settled fee due to him to the unspent money in his hand.

After completion of the proceeding related to a case, if there is some unspent money with advocate given to him for expenses by the client, and also his fees are due with the client then the advocate can settle the account with the client by deducting unspent money from his fees with the consent of the client.

Rule 29: Where the fee has been left unsettled, the advocate shall take the fees which he is legally entitled from the moneys of the client remaining in his hands, after the completion of the proceeding. The balance shall be returned to the client.

After settling the fees with unspent money, the advocate has to return the surplus money given to him by the client on account of expenses at the end of the proceedings of the case.

Rule 30: A copy of the client account shall be furnished to him after getting the necessary copying charges from him.

Copy of account must be given to the client.

Rule 31: An advocate shall not make any agreements whereby client’s funds in his hands are converted into loans to the advocate.

An advocate cannot enter into an agreement by which either client’s funds in his hands become loans to him.

Rule 32: An Advocate shall not lend money to his client for the purpose of conducting the case.

The advocate cannot lend money to his client to conduct a matter which he is looking after.

Purpose of maintaining an account by an advocate:

The basic purpose of accounting is to present a complete financial picture of the Advocates profession. It is necessary to maintain proper accounts to calculate the following

(i) Annual Income: As accounts are maintained by an advocate, his annual income can be seen clearly for any purpose.

(ii) Income Tax: It is necessary for income tax payment and filing the tax record.

(iii) Professional Tax: As legal practice is a profession, professional tax shall be paid by an advocate. For this purpose, the record of his professional income and expenses must be kept.

(iv) Amount due to the client or amount due by the client: To settle the fees due with the client it is necessary to keep the separate account of each client as mentioned in BCI rules.

Client’s account:

Client’s Account: For each and every client separate pages shall be allotted in the ledger and a separate account shall be maintained for them. You ought to maintain a record of your engagements, containing the terms of your settlement with the client, his address, and any other special instructions he may have given.

In a case, in the Madras High Court, the learned Judges made the following observation. ’We think it necessary also to say that this case brings out very clearly the desirability of legal practitioners keeping separate accounts of their own money and their clients’ money and seeing that their clients’ money is deposited in a bank in a separate account. If that is done it will be easy for a pleader to refrain from spending his clients’ money for purposes other than his clients’ and, if his conduct is questioned, to show that he has not transgressed the limits of professional good conduct.’

Other accounts:

(i) Fees Account: In this account, the fees received from each and every client shall be entered separately. From this account, the total amount of fees received from all the clients in a financial year can be ascertained.

(ii) Rent Account: An account for rented office premises if any must be maintained. This can be treated as a professional expense.

(iii) Salary Account: An advocate having staff in his office maintain the salary account and details of salary, bonus, gifts, and hand loans given to staff must be entered. This is also a professional expense.

(iv) Library Account: An advocate has to keep his legal knowledge up to date and for this, he must access various law libraries which may be at court premises or maybe online. An advocate should maintain an account for membership of such libraries. This is treated as a professional expense of an advocate.

(v) Printing and Stationery Account: A lot of paperwork for pleadings and proceedings is to be done which require stationery and printing and Xeroxing – all such expenses are professional expense and such entries must be recorded.

(vi) Postage and Telegram Account: Communication is the backbone of the legal profession. Each transaction done for the communication by way of postage or telegram must be recorded. This is also a professional expense.

(vii) Electricity Charges, Conveyance Charges, Repairing, and Maintenance are other professional expenses done and entries of these transactions must be done in an account book.

Bar Council of India Rules

Note: Part in Red words is part of Bar Council of India Rules.

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.

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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.

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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.

Thanks for reading till the end. Please share this with all legal professionals.

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Professional Misconduct of an advocate

 

Vande Matram! In this article, I am discussing the 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.

Professional Misconduct of an advocate:

Introduction:

The legal profession is considered a noble profession by society and the fundamental prerequisite of any profession is good ethics. So to maintain the nobility of the legal profession it is mandatory to adhere to and observe a set of professional norms referred to as Professional Ethics. Not complying with professional norms or ethics leads to misconduct. Professional misconduct is behaviour outside the bounds of what is considered acceptable or worthy of its membership by the governing body of a profession. Professional misconduct refers to disgraceful or dishonourable conduct not befitting an advocate. In other words, it can be said that any act which disqualifies an Advocate to continue in the legal profession is considered professional misconduct. The Advocates Act, 1961 as well Indian Bar Council are silent in providing an exact definition for professional misconduct because of its wide scope.

Professional Misconduct:

There are various duties and rules that are provided to be followed by an Advocate. These duties are towards his client, court, opponent, colleague, society, and himself. Non-compliance to any of the stated rules by an Advocate would be considered professional misconduct.

The word ‘professional misconduct’ is nowhere defined in the Advocates Act, and it is not possible to come up with a standard definition of it. This makes precedents in this particular matter the only reliable source of understanding the meaning of professional misconduct. Section 49 of the Advocates Act 1961 empowers the Bar Council of India to frame rules regulating standards of professional conduct. Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. As ‘professional misconduct’ is not defined anywhere in the Advocates Act 1961 and BCI is also silent on its definition, we have to rely on the decided cases. Some of the incidences of professional misconduct are enlisted as follows:

1) Dereliction of duty

2) Professional negligence

3) Misappropriation

4) Changing sides

5) Contempt of court and improper behaviour before a magistrate

6) Furnishing false information

7) Giving improper advice

8) Misleading the clients in court

9) Non-speaking the truth

10) Disowning allegiance to the court

11) Moving application without informing that a similar application has been rejected by another authority

12) Suggesting to bribe the court officials

13) Forcing the procecution witness not to tell the truth.

14) Moral Turpitude

15) improper or wrongful behavior

16) unlawful behavior

17) willful in character

18) a forbidden act

19) transgression

20) carelessness or negligence in the performance of duty

21) the act complained of bears forbidden quality or character

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 as 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.

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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