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 Punishment of Advocates For

Misconduct

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
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.

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.

Section36- Disciplinary powers of

Bar Council of India
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.

According to Section 36 B, 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.

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, these rules prescribes
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

Bar Council Of India and its Disciplinary Committees

Supreme Court Of India

REMEDIES TO THE ADVOCATE AGAINST THE

ORDER OF PUNISHMENT

Review of 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. Provided that no such order of review of the
disciplinary committee of a State Bar Council shall have effect unless it has been
approved by the Bar Council of India.

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

The appellant is an advocate practicing in Delhi. He has filed this appeal before the Supreme Court of
India, under section 38 of the Advocates Act, 1961 against the order of the Disciplinary Committee of
the Bar Council of India holding him guilty of misconduct and suspending him from practice for a
period of one year. This order by the Bar Council of India was passed as the Disciplinary Committee of
the Bar Council of Delhi could not dispose of the complaint received by it within a period of one year
and proceedings has thus been transferred to the Bar Council of India under Section 36-B of the Act.
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.

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 behaviour 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.