Meaning of Misconduct -

Misconduct is the antonyms of conduct. Conduct means behavior with good

manners and treatment shown towards others . Misconduct represents misbehavior. Misconduct as
explained in the Dictionary is 'improper conduct'. The term 'misconduct' has been defined in
Black's Dictionary as 'a transgression of some established and defined rule of action, a forbidden act , a
dereliction of duty, unlawful behavior, wilful in character, improper or wrong behavior'. Its synonyms are
misdemeanor, impropriety, mismanagement,offence , but not negligence or carelessness.

Meaning of Professional misconduct and

other misconduct -
Section 35 of the Advocate makes it clear that an advocate may be punished for professional
misconduct or other misconduct. The terms misconduct and professional misconduct are not defined In
Section 35 or any other provisions of the Advocate Act, 1961. The expression 'professional or other
misconduct' are mentioned in section 10 of Bar councils Act,1926. by using those words it was made
clear that the authority might take action in all cases of misconduct, whether in professional or other
capacity.
Every misconduct may not be Professional or other misconduct. Only unsatisfactory professional conduct
of a substantial, recurring or continuing nature is considered as professional or other misconduct. Thus a
guilty or fraudulent grossly improper conduct of an advocate in the discharge of his professional duty is
considered as professional misconduct.

Professional misconduct is conduct occurring otherwise than in connection with the practice of law
that would justify a finding that its preparation is not of good fame and character or is not a fit and
proper person to remain on the Roll of Legal Practitioners.

Examples of Misconduct of Advocates -

 Discourteous behaviour towards the Bench in the Court.

 Involving in moral turpitude.

 Defrauding of cheating the party.

 Engaging in a business of profit making.

 Failing to file a case after accepting a brief and fee plus expenses.

 Exhibiting ill temper which has the effect of overbearing the Court.
  Giving of improper Advice and wrong advice

SHAMBHURAM YADAV (petitioner) vs HANUMANDAS KHATRI (respondent) AIR2001SC2509

BENCH OF JUDGES: KT Thomas and YK Sabhrawal

Fact :

This case under Advocate Act, 1961 is concerned with professional misconduct of an advocate. In
this case, a complaint was filed by the appellant against the respondents-Advocate before the Bar
council of Rajasthan, which was referred to the Disciplinary Committee by the State Bar Council. The
complaint against advocate was that he had written a letter to his client Mahant Rajagiri stating that his
another client had informed him that the concerned judge accepts bribe to give favorable orders, and so
he should send an amount of Rs. 10,000 /- to get decision in his fever, and in case he can influence
the judge himself, there is no need to send Rs. 10,000 /- to be given to the judge. The content of the
letter was admitted by the respondent Advocate. However, in reply to the complaint letter, he pleaded
that the services of the presiding judge were terminated due to taking illegal gratification, and that he
had followed by norms of professional ethics and brought this fact to the knowledge of the client to
protect the interest of his client, and that the money was not sent by the client to him. Under such
circumstances, he had not committed in professional misconduct . The State Bar Council came to the
conclusion that the respondent Advocate was guilty of professional misconduct and suspended him from
practice for a period of 2 years.

Issues:

a. Can disciplinary committee of bar council of india review the punishmebt awarded? Can it
deliver different view on the same set of facts?
b. Whether the communication to a client that a particular judge is open to bribery and suggest
that the client should part with money(rs 10000 in this case) to be passed on to the judge, is a
serious misconduct? How and what punishment should be awarded for misconduct?
c. What is the duty of bar council as disciplinary body?

The respondent advocate challenged this decision before the Bar Council of
India. The disciplinary committee of Bar Council of India enhanced the punishment and directed
that the name of respondent be struck off from the roll of Advocate and thus he be debarred
permanently from the practice of advocacy. The respondent Advocate filed a review petition
before it against this decision under Section 44 of the Advocate Act, 1961. The Bar Council of
India accepted the review petition and held that the Advocate is a man of 80 years old and is
continuing practice since 1951. During such a long period of practice, he has never committed
any professional ethics with any ill motive. This is his first mistake. So, the review-petition was
allowed and the earlier order was modified by substituting the punishment of permanently
debarring him from practice with that of remanding him.

On appeal, the Supreme Court held that the earlier order of Bar Council of India had taken into
consideration all the relevant factors for arriving at the conclusion that the Advocate was totally unfit to
be a lawyer having the written such a letter and so the punishment lesser then permanently debarring
him cannot be imposed on guilty respondent. The Court further the held that the power of review does
not have empower the Disciplinary Committee for taking a different view on the same facts of the case.
The penalty of permanent debarment of practice was imposed on the respondent in view of the nature of
misconduct committed by the Advocate respondent, which has been modified in exercise of review
power. It is the duty of Bar Council to adhere to the required standards and on its failure to take
appropriate action against the erring Advocates.

Finally the Court set aside the review order of the Bar Council of India and restored its original
order.

Kaushal Kishore Awasthi v. Balwant Singh Thakur

Date of Judgment: December 11, 2017

In this recent case the Supreme Court was confronted with the issue of
professional misconduct under Section 35 of the Advocates Act, 1961. In
view of the facts, the Court held that if the Advocate was not professionally
engaged then disciplinary proceedings cannot be initiated against him.

In the case, the Appellant was held guilty of alleged professional misconduct
by the State Bar Council and subsequently by Bar Council of India. The
Appellant’s license to practice was also suspended. Aggrieved by this the
Appellant approached the Supreme Court.

Brief Facts: The complainant had engaged the Appellant as an advocate

pertaining to family dispute in respect of a property wherein the complainant
had filed a suit for declaring impugned sale deed as null and void as it was
prepared fraudulently and without the complainant’s consent. Later on the
parties in the suit settled the matter as they agreed for declaring the sale
deed as ineffective and requested the Court for division of the property.

The complainant later on decided to sell his share of land and for the purpose
of registration of sale deed, he produced the earlier sale deed before the
appropriate authority and at that stage the Appellant produced objection
letter against the proposed sale deed and objected registration of the said
sale deed on the ground that the complainant did not have full ownership of
the proposed land. The Appellant as per the facts had objected on
registration of sale deed as the complainant had not cleared his debt.

Complainant’s allegation- The complainant alleged that the appellant was

neither an interested party in the said sale deed or in the proposed sale of
the land nor was he authorised by any party to raise objections. He
contended that this act of the appellant was professional misconduct.
Appellant- In appeal the Appellant contended that even if the allegations
contained in the complaint are taken to be correct on its face value, these do
not amount to committing any misconduct as per the provisions of
the Advocates Act and Rules framed thereunder. the act of the appellant
was not as an Advocate and, therefore, could not amount to committing
misconduct.

Bench’s Verdict

The Supreme Court in the case allowed the Appeal and set aside the Bar
Council of India’s order and made the following observations in the case:

 The Court in the case made reference to Rule 22 under Chapter II of

the Standards of Professional Conduct and Etiquette framed by the
BCI which debars an Advocate from directly or indirectly making a
bid for or purchase either in his own name or in other’s name for his
own benefit or for the benefit of any other person any property sold
in the execution of a decree or order in any suit, appeal or other
proceedings in which he was in any way professionally engaged. The
Court also made reference to Section 35 of the Advocates Act, 1961,
as per which punishment can be awarded to an Advocate if he is
found guilty of professional or other misconduct. In view of the
aforesaid provisions, the Supreme Court in context of the instant
case observed that the complainant was selling the property to the
intending buyer which was an arrangement between them
unconnected with any legal proceedings.

 That the said property was not being sold in execution of any
decree, in which proceedings the appellant was engaged.
 That the complainant intended to sell the property in question when
he found himself in need of money. It is this sale which the
appellant tried to interdict. He was not doing so in the capacity of an
Advocate. As per him, the complainant was not authorised to sell
the property without repaying his debt. Whether the appellant was
right in this submission or not, is not relevant. What is relevant is
 that this act has nothing to do with the professional conduct of the
appellant.

Conclusion
The role of the lawyers in the society is of great importance. They being part of the system of
delivering justice holds great reverence and respect in the society. Each individual has a well
defined code of conduct which needs to be followed by the person living in the society. A lawyer
in discharging his professional assignment has a duty to his client, a duty to his opponent, a duty
to the court, a duty to the society at large and a duty to himself. It needs a high degree of probity
and poise to strike a balance and arrive at the place of righteous stand, more so, when there are
conflicting claims. While discharging duty to the court, a lawyer should never knowingly be a
party to any deception, design or fraud. While placing the law before the court a lawyer is at
liberty to put forth a proposition and canvass the same to the best of his wits and ability so as to
persuade an exposition which would serve the interest of his client and the society.

The advocate, as an officer of the Court, also has the responsibility to render services of sound
quality. Lapses in services in the nature of absence when the matters are called out, the filing of
incomplete and inaccurate pleadings – many times even illegible and without personal check and
verification, the non-payment of court fees and process fees, the failure to remove office
objections, the failure to take steps to serve the parties are not merely professional omission.
They amount to positive dis-service to the litigants and create embarrassing situation in the court
leading to avoidable unpleasantness and delay in the disposal of matters, and detrimentally
affects the entire judicial system.

Furthermore, as the officers of the court the lawyers are required to uphold the dignity of the
judicial office and maintain a respectful attitude towards the Court. This is because the Bar and
the Bench form a noble and dynamic partnership geared to the great social goal of administration
of justice, and the mutual respect of the Bar and the Bench is essential for maintaining cordial
relations between the two. It is the duty of an advocate to uphold the dignity and decorum of the
Court and must not do anything to bring the Court itself into disrepute, and ensure that at no
point of time, he oversteps the limits of propriety.