“Lawyers have the ability to change Injustice to Justice and Weakness to Strength”.
Whether it’s the tricks that make Harvey Spector from Suits seem super cool or the Monologue by Akshay Kumar’s Jolly in Jolly LLB 2, these reel ways are rarely how the law works. In the real world, however, Harvey & Jolly would probably face various disciplinary proceedings.
The ability of changing justice to injustice cannot be done in any arbitrary manner, but must be followed through by a certain ‘correct’ pathway. Being in the legal fraternity is one of the most respectable professions.
In a profession that deals with the heavy responsibility of justice and fairness, there are various rules that need to be adhered to. All over the world, lawyers have to maintain rules and guidelines, the severance of which can cause strict action against such lawyers. This strict action can be said to be a disciplinary procedure.
It is important to understand what disciplinary procedure means. In a corporate sense, disciplinary procedure means the process of dealing with any employee misconduct; wherein organizations have a range of actions that they can invoke on the perpetrator.
The severity of action depends on the severity of misconduct. These actions may go from an informal discussion with superiors to as severe as suspension from work.
Similarly, in the world of law, there are set disciplinary procedures against faulting lawyers. In India, the Bar Council of India performs a regulatory function by prescribing standards of professional conduct and etiquette and by exercising disciplinary jurisdiction.
The Supreme Court in Bar Council, Maharashtra Vs. M.V. Dabholkar observed that the Bar is associated with a high moral tone and considerable public service. It plays a key role in developmental and dispute-processing activities and builds up a just society and constitutional order.
It has earned a monopoly to practice law and autonomy to regulate its own internal discipline. Thus, it works like an organization in handling acts of misconduct with disciplinary proceedings.
The question arises as to why or when these disciplinary proceedings are initiated. As stated earlier, no lawyer can frivolously make their own pathways just to get a result they want, or in simple words, “Win the case”. The actions which go against the morals and ethics of professional and societal standards can be loosely termed as misconduct.
The Advocates Act 1961 deals with disciplinary proceedings in cases of misconduct. Although the Act does not specifically define ‘misconduct’, the Supreme Court has interpreted it in some of its decisions, such as in State of Punjab and Others vs. Ram Singh Ex. Constable, Probodh Kumar Bhowmick Vs. University of Calcutta and B.C. Chaturvedi Vs. Union of India
Specifically in the case of Noratanmal Chouraria vs M.R. Murli & Anr, the Apex Court stated,
“…Misconduct… is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, ‘improper behavior, intentional wrongdoing or deliberate violation of a rule of standard or behavior’. Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law.”
It also stated,
“A member of the legal profession which is a noble one is expected to maintain a standard in dignified and determined manner. The standard required to be maintained by the members of the legal profession must be commensurate with the nobility thereof. A Lawyer is obligated to observe those norms which make him worthy of the confidence of the community in him as an officer of the court.”
Some instances of advocate misconduct include actions such as: Intended delay in filing a suit, Handing forged documents to clients/ court/ opposite party, defrauding vulnerable clients, contempt of court, bribery, misleading, appearing for both sides, etc..
Advocates Act 1961:
The Advocates Act 1961 was passed with an aim to amend and consolidate the law relating to the legal practitioners and to provide for the Constitution of Bar Councils and an All-India Bar. Chapter 5, running from Sec.30 to Sec.44, specifically stands for Conduct of Advocates.
It opens with Sec.35 which states the Punishment of advocates for misconduct. It clearly mentions that the misconduct is not limited merely to professional instances. Misconduct unconnected to the profession also counts as misconduct under the Act.
The case of misconduct is to be heard by a disciplinary committee of a State Bar Council and provides the necessary powers required. Such a disciplinary committee may, upon hearing the case, dismiss the complaint, reprimand the advocate, suspend the advocate from practice for such period as it may deem fit or even remove the name of the advocate from the State roll of advocates.
Similar powers have been vested also with the Bar Council of India under Sec.36. It can either proceed with enquiry into disciplinary proceedings by its own motion or on the report of any State Bar Council or directly upon an application made to it by a person interested to pursue such misconduct case.
In the event of cases to the State Bar Council, such must be disposed off within a period of one year from the complaint or initiation of proceedings. In case there is failure to dispose of the case, then it automatically gets transferred to the Bar Council of India.
There is also an option of appeal to the Bar Council of India if a party is aggrieved with the decision of the State Bar Council within 60 days. In case the Bar Council’s decision is also not favorable, then an appeal to the Supreme Court can be made within 60 days of the Bar Council’s decision.
Another important provision comes under Sec.41 of the Act, which states the alterations needed in the roll of advocates in case a lawyer is reprimanded or suspended. Every State Bar Council keeps a record of the advocates practicing under it, which can be said as the Roll of Advocates.
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Thus, in case of an unfavorable decision of the disciplinary committee against the advocate, his/ her name gets deleted from the roll of advocates. Their certificate also gets recalled.
It is important to remember that the disciplinary committees of both the State and National Bar Council are vested with the same power as that of a civil court. They have the power to get any and all necessary information in the form of persons or papers in order to assess and decide in the case.
Further, if any advocate is suspended from practice, they shall not appear for practice before any court of law or authority or person. If found practicing illegally, such suspended advocate may be punishable with a term of six months.
Supreme Court & Suspension of Law License:
The Supreme Court is stated as the last appellate authority in disciplinary proceedings under Sec.38 of the Advocates Act.
Unlike Sec.35 which explicitly states what actions a State Bar can take, the Act does not specify exactly what action the Supreme Court as an appellate authority can take.
Hence, a question of whether the Supreme Court can suspend a lawyer’s license has been asked.
There is no explicit provision as to what exactly the Apex Court can do in solving misconduct proceedings. Thus, to answer the question, there are various facets that can be looked at.
Sec.38 of the Act states the Supreme Court may pass such an order [(including an order varying the punishment awarded by the disciplinary committee of the Bar Council of India)] thereon as it deems fit. Thus, the Supreme Court can vary the punishment awarded by the Bar Council.
However, the section further goes on to state that such alteration should not adversely affect the person aggrieved without giving a reasonable opportunity of being heard.
Thus, it can be understood that if in case the Bar Council has not suspended the license, the Supreme Court also cannot do the same as it would adversely affect the party.
It was in the case of Supreme Court Bar Association of India v. Union of India that this question was discussed. This case had come about due to Writ Petition to the Court under Art.32 of the Indian Constitution, after being aggrieved in the case of In Re: Vinay Chandra Mishra .
Mishra placed the Writ before the Supreme Court and stated that the court did not have the inherent power to suspend a lawyer and also that only disciplinary committees under the Advocates Act could inquire and suspend.
The Court ruled in this case that the Court of records (Supreme Court and High Court) have the power to punish under matters of contempt of Court.
However, these powers are not wide enough to determine in a summary manner whether an advocate is also guilty of misconduct by giving a go to the procedure prescribed under the Advocates Act.
It was clearly stated in the Act that the Bar Council has the authority of suspension for misconduct; thus statutory provisions cannot be ignored by the Court just by reading under Art.142 of the Constitution.
Contempt of Court are the situations being disobedient to or disrespectful towards a court in a behavior that opposes the authority, justice, and dignity of the court.
The Constitution under Art.129 gives the Supreme Court the power of Court of Record and thus has the power to punish for contempt toward itself. Thus, the Supreme Court has the power to suspend the license of advocates in contempt proceedings towards itself only; but does not inherit the right as the appellate authority under the Advocates Act.
- P.D. Gupta v. Ram Murti and Anr.[ AIR 1998 SC 283]: After a person died leaving behind a large amount of immovable properties, there were many claims by the descendants, thus making the land disputed. One of the lawyers of such a descendant purchased the property and sold it to a third party making large profits. The lawyer knew the land was disputed and yet proceeded to make a profit from it. This act was deemed as professional misconduct by the court which led to a suspension of one year for the advocate.
- Emperor v/s K.C.B [AIR 1935 Cal 547]: Herein, certain tins of ghee were seized by Municipal Authorities for being adulterated and kept under the custody of a person. An advocate falsely told the person that an officer had ordered the tins to be handed over to their owner. The High Court found the lawyer guilty of misconduct of furnishing false information.
- Smt. Sudesh Rani v. Munish Chandra Goel [JT 2002 (1) SC 427]: The suit was in regards to tenancy and eviction. The respondent advocate filed a suit for eviction of tenants while suppressing the fact that in an earlier compromise decree had been made wherein the said tenants were declared owners of the property. The material facts were suppressed by the lawyer with the intention to harass the vulnerable. Thus found guilty with a suspension of two years.
The misconduct of lawyers and disciplinary proceedings are a very integral part of our legal system.
People put a lot of faith and hope into the legal system for justice and fairness in their causes.
Keeping checks and balances on legal professionals directly helps in maintaining the integrity and standard of the profession.
Lawyers have a dual role: to represent their clients till the very end and at the same time as the officers of court, they are required to uphold the dignity of the judicial office and maintain a respectful attitude.
Thus, making sure that they adhere to the highest professional standards is of utmost importance.
Story by Sai Kulkarni – Intern