STATUTORY PROVISIONS

DEALING WITH PROFESSIONAL

MISCODUCT

SEBA NAGEEB
ROLL NO: 708

ADVOCATES ACT, 1961

The Advocates Act, 1961 has not defined the term misconduct
because of the wide scope and application of the term.
Chapter V containing Sections 35 to 44 deals with the
conduct of the advocates. It describes the provisions relating to
punishment for professional and other misconducts.

SECTION 35
Section 35 (1) provides that where on receipt of the 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.
According to Sub-section (1-A) of Section 35, 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 enquiry to be made
by any other disciplinary committee of the State Bar Council.
Section 35 (2) provides, that the disciplinary committee of a State Bar Council shall fix
the date for the hearing of the case and shall cause a notice thereof to be given to the
advocate concerned and the Advocated- General of the State.

 Sub-section (3) of Section 35, lays down that the disciplinary committee of
a State Bar Council after giving the advocate concerned and the AdvocateGeneral 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.

 Sub-section (4) of Section 35, lays down that where an advocate is

suspended from practise 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.
However, an appeal against the order of the disciplinary committee
may be preferred, to the Bar council of India and thereafter to the
Supreme Court against the order of the Bar Council of India.

THE BAR COUNCIL OF INDIA RULES

The Advocates Act, 1961 empowers the Bar Council of India to frame certain

rules. Section 49 (1) (c) of the Act grants general power to The Bar Council of
India to make rules relating to the standards of professional conduct and
etiquette to be observed by advocates. The rules formed by Bar Council of India
is given in Chapter II of Part IV of the Bar Council of India Rules tells the
duty of an Advocate to the Court, to the client, to opponent and to colleagues
The rules laid down by the Bar Council of India forms the code of conduct for

advocates and in broad sense any violation of such rules or code of conduct can
be termed as professional misconduct

THE BODY OR AUTHORITY EMPOWERED TO PUNISH FOR

PROFESSIONAL OR OTHER MISCONDUCT
STATE BAR COUNCIL AND ITS DISCIPLINARY COMMITTEES
It is one of the functions of the State Bar Council to entertain and determine the cases of
misconduct against the advocate on its roll. Section 9(1) of the Act requires the Bar
Council to constitute one or more disciplinary committees.
Section 35 provides that after giving the advocate concerned and the Advocate- General
an opportunity of being heard, the disciplinary committee of a State Bar Council may
make any of the orders given under Section 35 Sub-section (3)
When the advocate is suspended from the practice under the aforesaid clause (3), he
shall, during the period of suspension, be debarred from practicing in any Court or
before any authority or person in India.

BAR COUNCIL OF INDIA AND ITS DISCIPLINARY

COMMITTEE
Section 36 of the Advocates Act empowers the Bar Council of India to refer, in certain

circumstances, the case for disposal to its disciplinary committee

Sub-section (1) of Section 36 provides that where on receipt of a complaint or

otherwise, the Bar Council of India 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 Disciplinary Committee.
Sub-section (2) of Section 36 lays down that the Disciplinary Committee of the Bar

Council of India may, either of its motion or in a report by any State Bar Council or on
an application made to it by any person interested, withdraw for inquiry before itself any
proceeding for disciplinary action against any advocate pending before the Disciplinary
Committee of any State Bar Council and dispose of the same.

REMEDIES TO THE ADVOCATE AGAINST

THE ORDER OF PUNISHMENT
Review to Orders by Disciplinary Committee.
According to Section 44 of the Advocates Act, 1961, the

Disciplinary

Committee of a Bar Council may of its own motion or otherwise, review any
order within sixty days of the date of that order, passed by it.

Appeal to the Bar Council of India

Under section 37, any person aggrieved by an order of the disciplinary
committee of the State Bar Council made Under Section 35 or the Advocate
General of the State may within 60 days of the date of the communication of
the order to him, prefer an appeal to the Bar Council of India.

 Review of orders of Bar Council of India

Under Section 48-AA the bar council of India or any of its committee , other than its
disciplinary committee , may on its own motion or otherwise, review any order, within 60 days
of the date of that order, passed by it under the Advocates Act.
Provisions for Appeal to the Supreme Court
Section 38 of the Advocate provides that any person aggrieved by an order made by the
Disciplinary Committee of the Bar Council of India under Section 36 and 37 of the Act, within
sixty days of the date, on which the order is communicated to him, prefer an appeal to the
Supreme Court, and the Supreme Court may pass such order, including the order varying the
punishment awarded by the Disciplinary Committee of the Bar Council of India as they may
deem fit.

CASE LAWS
Bar Council of Maharashtra v. M.V. Dahbolkar.
AIR 1976 SC 242
Facts
Advocates positioning themselves at the entrance to the Magistrates courts and rushing towards
potential litigants, often leading to an ugly scrimmage to snatch briefs and undercutting of fees.
The Disciplinary Committee of the state Bar Council found such behavior to amount to
professional misconduct, but on appeal to the Bar Council of India, it was the Bar Council of India
absolved them of all charges of professional misconduct on the ground that the conduct did not
contravene Rule 36 of the Standards of Professional Conduct and Etiquette as the rule required
solicitation of work from a particular person with respect to a particular case, and this case did not
meet all the necessary criteria, and such method of solicitation could not amount to misconduct.

 Held
This approach of the Bar council of India was heavily reprimanded by the Supreme
Court. It was held that restrictive interpretation of the relevant rule by splitting up the
text does not imply that the conduct of the advocates was warranted or justified. The
standard of conduct of advocates flows from the broad cannons of ethics and high
tome of behaviour. It was held that professional ethics cannot be contained in a Bar
Council rule nor in traditional cant in the books but in new canons of conscience
which will command the member of the calling of justice to obey rules or morality
and utility. Misconduct of advocates should thus be understood in a context-specific,
dynamic sense, which captures the role of the advocate in the society at large.

 P.D. Gupta v. Ram Murti and Anr AIR 1988 SC 283

Facts:

One Srikishan Dass died leaving behind extensive immovable properties. Claims to the said
properties were made by one Vidyawati claiming to be the sister of the deceased, one Ram
Murti and two others who claimed themselves to be the heir of the deceased.
Later the said properties were purchased by the advocate of Vidyawati knowing them to be
disputed at a throw away price. The advocate thereafter sold the property to a third party and
made profit and created more complications in the pending case.
Held:

The Supreme Court declared him of professional misconduct. The Court further held that the
lawyer owe duty to be far not only to his client but to the court as well as to the opposite
party in the conduct of his case.