Rampant indiscipline

THE PROFESSIONAL conduct of advocates is governed by the provisions of the Advocates Act, 1961, and the Bar Council Rules. They indicate that the Constitution of State Bar Councils and Bar Council of India is for one of the principal purposes - to see that the standards of the professional conduct and etiquette laid down by the Bar Council of India are observed and preserved. The Bar Councils therefore entertain cases of misconduct against advocates.

The Bar Council is a body corporate which constitutes the disciplinary committees. One of the principal functions of the Bar Council regarding standards of professional conduct and etiquette of advocates is to receive complaints against advocates and if it has reason to believe that any advocate has been guilty of professional misconduct, it shall refer the case to its disciplinary committee.

The Bar Council of a State may also of its own notion refer the case for disposal to its disciplinary committee. It is apparent that a State Bar Council not only receives a complaint but is required to apply its mind to find out whether there is any reason to believe that any advocate has been guilty of professional or other misconduct. A most significant feature is that no litigant and no member of the public can straightway commence disciplinary proceedings against an advocate. It is the Bar Council of a State which initiates the disciplinary proceedings.

The Supreme Court also reiterated the principle that there must be application of mind and a prima facie case must be established that there was professional or other misconduct on the part of the advocate. This is to prevent frivolous applications. That is why the Bar Council of the State is given the responsibility of censoring the applications and only if it finds that there is `reason to belive' that there was professional or other misconduct, it can send the complaint to the disciplinary committee.

The word `misconduct' has not been defined. The dictionary explains it as `improper conduct'. The propriety of the conduct of the advocate is to be enquired into by the Commission. Whether it is `professional misconduct' or `misconduct otherwise' has to be judged by the Bar Council which has to be satisfied about the commission of such misconduct as technically understood under the Advocates Act.

Every misconduct may not be professional misconduct or other misconduct contemplated by Section 35. Before the passing of the Advocates Act, Section 10 of the Bar Councils Act, 1926, conferred on the court disciplinary jurisdiction to take action in cases of misconduct, whether in a professional or other capacity, leaving it to the Court to take action only in suitable cases (1980 (i) MLJ 121 FB).

A special Bench of the Calcutta High Court, in the matter of D, an advocate, reiterated the position that the test to be applied in considering the question whether an advocate should be struck off the rolls is whether the proved misconduct of the advocate is such that he must be regarded as ``unworthy to be a member of the honourable profession to which he has been admitted and unfit to be entrusted with the responsible duties that an Advocate is called upon to perform.'' (AIR 1986 Cal 158).

The Supreme Court has observed that proceedings under the Bar Councils Act are taken in order to ensure that the highest standards of professional conduct are maintained at the Bar. The accent is laid at every stage by the apex court on the fitness of the person to continue on the rolls, which has to be decided with reference to his conduct in general or with reference to his conduct touching upon a particular incident (1999 (i) MLJ 188).

Section 35 provides for the punishment of advocates for misconduct in the following circumstances:

(1) Where on receipt of a complaint or otherwise as State Bar Council has reason to believe that any advocate on its rolls has been guilty of professional or other misconduct, it shall refer the case for dismissal to its disciplinary committee.

1(a) The State Bar Council may, either of its own notion 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 that State Bar Council.

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

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 are 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 the advocates;

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.

A look at Sub-section-I shows that the complaint under the said provision must allege that the advocate on the rolls of the State Bar Council has been guilty of professional or other misconduct. Only if this is ultimately proved, can the Disciplinary Committee of the State Bar Council pass appropriate punishment orders as laid down by clauses (b) to (d) of Sub-Section (3) of Section 35 of the Act.

These provisions clearly indicate that punishments contemplated by them have to be imposed on practising advocates found guilty of having committed the misconduct, while they were active practitioners of the law. It is obvious that `professional misconduct' cannot be committed by anyone who is not practising the profession of law being an advocate on the rolls of the Bar Council concerned.

It is also true that such a person while practising law might commit `any other misconduct' which may not necessarily be `professional misconduct'.

For example, if a practising advocate is found guilty of any misdemeanour or misconduct like beating his neighbour or for rash and negligent driving or any other misconduct he may still attract the provisions of Section 35(1) provided, at the time when he commits such alleged misconduct, he is practising law as a `professional' duly registered as an advocate on the rolls of the State Bar Council concerned. Thus an advocate who has suspended his practice either on appointment to judiciary or other trustees cannot be found guilty of professional misconduct (1999(3) MLJ SC12). In a particular case, the Bar Council of Delhi suspended an advocate from practice for three years.

Based on trust

The relationship between advocate and client is based only on confidence and trust. Counsel is not expected to please both his client and the opposite party and if he does so, it will amount to professional misconduct and breach of trust (2000(1) LW 132).

Unfortunately we have been witnessing some incidents in which, some advocates totally identify themselves with their political mentors and jump at the earliest opportunity to please their clients and masters forgetting professional ethics.

Many advocates, especially the new comers, identify themselves with various political parties. It is painful to see some advocates flourishing letter heads and visiting cards with photos of political leaders and party emblems embossed on them to declare their political loyalty.

An advocate is not expected to exhibit himself in such a manner. On the contrary, the people require the help of an advocate in seeking justice irrespective of any prejudice either personal or political. The Bar Council of Tamil Nadu has not taken any steps to correct the situation in spite of complaints.

Another unhealthy practice some advocates found to be following is conducting the criminal cases of political leaders exceeding their normal limits as advocates and challenging the judges without any compunction. A Special Judge pronouncing the judgment against a former recently MLA came down heavily on the accused and their lawyers ``for making a mockery of Court and its proceedings''. He further observed: ``Frankly speaking, the preceding night before each hearing, I have deeply yearned hoping that the day would not dawn at all. In fact, this case was in such a state that the judge was wounded in the open court (by the defence) whenever possible.''

In this context, it will be worth-while to refer to the judgment of the Supreme Court (1999 (i) Supreme Court Cases Page 37). In this case the Secretary of the Delhi Bar Association made a demand by shouting that the judge stopped working because the Advocates' Association passed a resolution for boycotting the Court and demanded transfer of the case to some other Court, as follows:

``Judicial function cannot and should not be permitted to be stonewalled by brow beating or bullying methodology, whether it is by litigants or by counsel... No court is obliged to adjourn a case because of the strike call given by any association of advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours...

``No advocate or a group of them can boycott the courts or any particular court and ask the court to desist from discharging judicial functions... A change of court is not allowable merely because the other side too has no objection for such change. Or else, it would mean that when both the parties combine together they can avoid a court and get a court of their own choice.''

Seniors, in those days, advised their juniors not to disagree with the presiding judge openly. Even if the judge was wrong, we were advised that it was our duty and humbly tell the judge, ``Possibly My Lord, I have not made myself understood, let me have your Lordship's permission to repeat once again what I have said,'' and ultimately we were taught to say, ``Highly obliged, My Lord,'' and walk off.

We were also taught not to take personal interest in the client and stop with arguing the case to our best capacity. One hopes that the noble profession will continue without the onslaughts of some members of the Bar and the public.

C. LAKSHMI NARAIN

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