Misconduct: Lawyer and Bar Council Essay Example
Misconduct: Lawyer and Bar Council Essay Example

Misconduct: Lawyer and Bar Council Essay Example

Available Only on StudyHippo
Topics:
  • Pages: 8 (1952 words)
  • Published: April 28, 2017
  • Type: Case Study
View Entire Sample
Text preview

Professional Misconduct

An advocate is the most accountable, privileged and erudite person of the society and his act are role model for the society, which are necessary to be regulated. Professional misconduct is the behaviour outside the bounds of what is considered acceptable or worthy of its membership by the governing body of a profession. Professional misconduct refers to disgraceful or dishonourable conduct not befitting an advocate. Chapter V of the Advocate Act, 1961, deals with the conduct of Advocates.

It describes provisions relating to punishment for professional and other misconducts. Section 35(1) of the Advocate Act, 1961, proviso says, is relevant in this context. This proviso say, where on receipt of a complain 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 it disciplinary committee. In depth the provisions are discussed in the later part.

Generally legal profession is not a trade or business, it’s a gracious, the noble, and decontaminated profession of the society. Members belonging to this profession have not to encourage deceitfulness and corruption, but they have to strive to secure justice to their clients. The credibility and reputation of the profession depends upon the manner in which the members of the profession conduct themselves. It’s a symbol of healthy relationship between Bar and Bench.

There is heavy responsibility on those on whom duties’ are vested by the virtue of being a part of my most credible as plausible profession of the society. The Advocates Act, 1961 as well Indian Bar Council are silent in providing exact definition for profession misconduct because of

View entire sample
Join StudyHippo to see entire essay

its scope, though under Advocate Act, 1961 to take disciplinary action punishment are prescribed when the credibility and reputation on the profession comes under a clout on account of acts of omission and commission any member of the profession.

What Is The Code Of Conduct Prescribed For An Advocate? The Bar Council Rules prescribe a strict code of conduct for advocates, it has to follo: No advertising or soliciting work, it is against an advocate’s code of ethics to solicit or advertise work and amounts to a misconduct on the part of the advocate. Both direct and indirect advertising is prohibited. An advocate may not advertise his services through circulars, advertisements, touts, personal communication or interviews not warranted by personal relations.

Similarly, the following forms of indirect advertising are prohibited:

  1. by issuing circulars or election manifestos by a lawyer with his name, profession and address printed on the manifestos, thereby appealing to the members of the profession practising in the lower courts who are in a position to recommend clients to counsel practising in the HC.
  2. canvassing for votes by touring in the province or sending out his clerk or agents to the various districts, which must necessarily mean directly approaching advocates practising in subordinate courts.

Further, the signboard or nameplate displayed by an advocate should be of reasonable size. It should not refer to details of an affiliated by the advocate i. e. that he is or has been president or member of a bar council or of any association, or he has been a Judge or an Advocate-General, or that he specialises in a particular kind of work, or that he is or was associated with

any person or organisation or with any particular cause or matter.

Not demand fees for training; An advocate is restrained from demanding any fees for imparting training to enable any person to qualify for enrolment. Not use name/services for unauthorised practice; An advocate may not allow his professional services or his name to be associated with, or be used for any unauthorised practice of law by any lay agency. Not enter appearance without consent of the advocate already engaged: an advocate is prohibited from entering appearance in a case where there is already another advocate engaged for a party except with the consent of such advocate.

However if such consent is not produced, the advocate must state the reasons for not producing it, and may appear subsequently, only with the permission of the court. Duty to opposite party:- While conducting a case, a lawyer has a duty to be fair not only to his client but also to the court, and to the opposite party. An advocate for a party must communicate or negotiate with the other parties regarding the subject matter of controversy, only through the opposite party’s advocate.

If an advocate has made any legitimate promises to the opposite party, he should fulfil the same, even if the promise was not reduced to writing or enforceable under the rules of the court. Duties of an advocate towards his client: The relationship between a lawyer and a client is highly fiduciary and it is the duty of an advocate fearlessly to uphold the interests of the client by fair and honourable means without regard to any unpleasant consequences to himself or any other person.

Procedure Followed On The

Notice Of Professional Misconduct The following is the procedure followed

  1.  In exercise of powers under Section 35 contained in Chapter V entitled “conduct of advocates”, on receipt of a complaint against an advocate (or suo motu) if the State Bar Council has ‘reason to believe’ that any advocate on its roll has been guilty of “professional or other misconduct”, disciplinary proceeding may be initiated against him.
  2.  Neither Section 35 nor any other provision of the Act defines the expression ‘legal misconduct’ or the expression ‘misconduct’.
  3. The Disciplinary Committee of the State Bar Council is authorised to inflict punishment, including removal of his name from the rolls of the Bar Council and suspending him from practice for a period deemed fit by it, after giving the advocate concerned and the ‘Advocate General’ of the State an opportunity of hearing.
  4. While under Section 42(1) of the Act the Disciplinary Committee has been conferred powers vested in a civil court in respect of certain matters including summoning and enforcing attendance of any person and examining him on oath, the Act which enjoins the Disciplinary Committee to ‘afford an opportunity of hearing’ (vide Section 35) to the advocate does not prescribe the procedure to be followed at the hearing.
  5.  The procedure to be followed in an enquiry under Section 35 is outlined in Part VII of the Bar Council of India Rules2 made under the authority of Section 60 of the Act.
  6. Rule 8(1) of the said Rules enjoins the Disciplinary Committee to hear the concerned parties that is to say the complainant and the concerned advocate as also the Attorney General or the Solicitor General or the Advocate

General. It also enjoins that if it is considered appropriate to take oral evidence the procedure of the trial of civil suits shall as far as possible be followed. Contempt Of Court As Misconduct In the recent case of B. M. Verma v.

Uttrakhand Regulatory Commission court noted that, it was given the wide powers available with a Court exercising contempt jurisdiction, court quoted several he Delhi HC, in the case of Court of Its Own Motion v. State [5], dealing with the contempt proceedings involving two senior advocates, observed that ‘given the wide powers available with a Court exercising contempt jurisdiction, it cannot afford to be hypersensitive and therefore, a trivial misdemeanor would not warrant contempt action.

Circumspection is all the more necessary because as observed by the SC in SC Bar Association v. Union of India the Court is in effect the jury, the judge and the hangman; while in M. R. Parashar H. L. Sehgal it was observed that the Court is also a prosecutor. Anil Kumar Sarkar v. Hirak Ghosh, reiterates this. ’ In the most controversial and leading case of R. K. Ananad vs. Registrar of Delhi HC facts, On 30th May, 2007 a TV news channel NDTV carried a report relating to a sting operation.

The report concerned itself with the role of a defence lawyer and the Special Public Prosecutor in an ongoing Sessions trial in what is commonly called the BMW case. On 31st May, 2007 a Division Bench of this Court, on its own motion, registered a writ Petition and issued a direction to the Registrar General to collect all materials that may be available in respect of the

telecast and also directed NDTV to preserve the original material including the CD/video pertaining to the sting operation. ISSUE :The question for our consideration is whether Mr. R. K. Anand and Mr. I. U. Khan, Senior Advocates and Mr. Sri Bhagwan Sharma, Advocate have committed criminal contempt of Court or not. It was observed that prima facie their acts and conduct were intended to subvert the administration of justice in the pending BMW case and in particular influence the outcome of the pending judicial proceedings. Accordingly, in exercise of powers conferred by Article 215 of the Constitution proceedings for contempt of Court (as defined in Section 2(c) of the Contempt of Courts Act, 1972) were initiated against Mr. Anand, Mr. Khan and Mr. Sri Bhagwan Sharma and they were asked to show cause why they should not be punished accordingly. HELD : court said that Courts of law are structured in such a design as to evoke respect and reverence for the majesty of law and justice. The machinery for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in a dignified and orderly manner.

The very sight of an advocate, who was found guilty of contempt of court on the previous hour, standing in the court and arguing a case or cross-examining a witness on the same day, unaffected by the contemptuous behaviour he hurled at the court, would erode the dignity of the court and even corrode the majesty of it besides impairing the confidence of the public in the efficacy of the institution of the courts. This necessitates vesting of power

with the HC to formulate rules for regulating the proceedings inside the court including the conduct of advocates during such proceedings.

That power should not be confused with the right to practise law. Thus court held that there may be ways in which conduct and actions of a malefactor who is an advocate may pose a real and imminent threat to the purity of court proceedings cardinal to any court’s functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but also the obligation to protect itself.

Hence, to that end it can bar the malefactor from appearing before the courts for an appropriate period of time. In the present case since the contents of the sting recordings were admitted in the present case, there was no need for the proof of integrity and correctness of the electronic materials. Finally the SC upheld HC’s verdict making Anand guilty on the same count. On the other hand, the SC let off I U Khan, who was found guilty by the HC. Attempt Of Murder: In the case of Hikmat Ali khan v. Ishwar prasad arya and ors[9], FACTSIshwar Prasad Arya, respondent No. , was registered as an advocate with the Bar Council of Uttar Pradesh and was practising at Badaun. An incident took place on May 18, 1971 during lunch interval at about 1. 55 p. m. , in which respondent No. 1 assaulted his opponent Radhey Shyam in the Court room of Munsif/Magistrate, Bisauli at Badaun with a knife. A pistol shot is also said to have been fired by him

at the time of incident. After investigation he was prosecuted for offences under Section 307 of the Indian Penal Code and Section 25 of the Arms Act.

 

Get an explanation on any task
Get unstuck with the help of our AI assistant in seconds
New