Professional Misconduct and other Misconduct

Section 35 and 36 of the Advocates Act, 1961 provide the rules and procedure for professional misconduct and other misconduct. Section 35 lays down the procedure for the State Bar Council whereas Section 36 lays down the procedure for the Bar Council of India. The procedure is as follows-

 

-   Complaint Received/Suo Moto Act (Both based on Reason to Believe)

-   Disciplinary Committee is set consisting of 3 members (Section 9)

-   Opportunity of hearing (principles of natural justice to be followed)

-   Order (Dismissal/Guilty)

 

In the case of NG Dastane v. Srikant Shivde, the court held that the term reason to believe should be such that the genuineness of the matter remains intact. There should be a background of facts in order to understand whether or not there was actually any such act done or not. No frivolous matters should be issued to the council against a person.

 

In pursuance of Section 35, the council has prepared rules for the conduct of advocates and lawyers. On failure of adhering to those rules, a professional misconduct act is committed. There are various cases wherein the courts have discussed the meaning of the term professional misconduct and other misconduct. Let us discuss those briefly.

 

In the case of State of Punjab v. Ram Singh, 1992 the court held the term other misconduct shall include acts which involve moral turpitude, improper or wrong behaviour, indulging in unlawful actions, and commission of forbidden acts prescribed in rules. The court however held that it is essential that mens rea was there on the part of the offender to commit such a misconduct. Mere negligence or slight carelessness shall not be considered as a misconduct on the part of the person alleged to have committed misconduct. A similar observation was made in the case of N. Chaurasia v. Mr. Murli, wherein the courts held that any kind of breach of discipline, intentional or deliberate violation of rules and behaviours in the court shall also be considered as misconduct.

 

In the case of In re Tulsidas Amanlal, the court held that it is not necessary that misconduct should also involve moral turpitude. If there is any act which can make or render a person unfit to fulfil his duties towards the profession or does acts which can hamper the administration of justice, then the same shall be considered as professional misconduct.

 

There were two tests laid down to identify professional misconduct in the matter of an advocate, either of the tests needs to be fulfilled and not both compulsorily;

 

1. Unworthy to remain a member of the hon’ble profession of law.

2. Unfit to be entrusted with the respective duty of advocate which is to be fulfilled.

 

Therefore the council and the disciplinary committee have to properly check before acting upon a complaint or in case of a Suo moto action, again prior checking of facts should be done in order to avoid any sort of unnecessary embarrassment to a person which can cost him his reputation and profession.