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Professional Misconduct:- Section 35
• Where on receipt of a 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
• The disciplinary committee of a State Bar Council shall fix a date for
the hearing of the case and shall cause a notice thereof to be given to
the advocate concerned and to the Advocate-General of the State.

The disciplinary committee of a State Bar
Council
• Section 42 of the Advocates Act:-
It is an important section which deals with the power of the disciplinary
committee. It provides that the disciplinary committee of a Bar Council shall
have the same powers as are vested in a civil court under the Code of Civil
Procedure in respect of the following matters-
(a) summoning and enforcing the attendance of any person and examining
him on oath;
(b) requiring discovery and production of any documents;
(c) receiving evidence on affidavit
(d) requiring any public record or copies thereof from any court or
(e) issuing commissions for the examination of witnesses or documents

• Bar Council shall be deemed to be judicial proceedings within the
meaning of Sections 193 and 228 of the Indian Penal Code and every
such disciplinary committee shall be deemed to be a Civil Court for
the purposes of Sections 345(1), 346 and 349 of the Code of Criminal
Procedure, 1973
• Section 43 of the Act makes provision in respect of the cost of
proceedings before the disciplinary committee. It provides that the
disciplinary committee of a State Bar Council may make such order as
to the costs of any proceedings before it as it may deem fit

Disciplinary committee of Bar Council of India
A) Withdraw for inquiry:-
The disciplinary committee of the Bar Council of India may, either of its own
motion or on a report by any State Bar Council or on an application made to
it by any person interested, withdraw for inquiry before itself any
proceedings for disciplinary action against any advocate pending before the
disciplinary committee of any State Bar Council and dispose of the same.
B) Automatic transfer of inquiry:-
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 1 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 failing which such proceedings shall
stand transferred to the Bar Council of India

C) Appellate power:-
Any person aggrieved by an order of the disciplinary committee of a
State Bar Council made may, within 60 days of the date of the
communication of the order to him, prefer an appeal to the Bar
Council of India.

What is Professional Misconduct:-
• Misconduct" is a wide expression.
• To treat a conduct as misconduct it is not necessary that it should
involve moral turpitude.
• A conduct may be taken as misconduct, although it does not involve
moral turpitude.
• Any conduct which embarrass the administration of justice
• If the conduct of an advocate is such as to make him unworthy to
remain a member of the honourable legal profession and unfit to be
entrusted with the responsible duties that an advocate is called upon
to perform, he will be held guilty of misconduct and may be punished

Tests
(a) the misconduct is such that he must be regarded as unworthy to
remain a member of the honourable profession;
(b) the misconduct is such that he must be regarded as unfit to be
entrusted with the responsible duties that an advocate is to perform.
The fulfilment of any one of the said conditions would be sufficient to
constitute misconduct.

• The expression "professional or other misconduct" in section 35 of the
Advocates Act means misconduct in a professional or other capacity. For
the purposes of this section the meaning of the expression "professional or
other misconduct is not confined to the acts done in a professional
capacity by an advocate. The words "professional or other misconduct" are
found in section 10 of the Indian Bar Councils Act, 1926. Interpreting these
words the Court held that they do not denote only the misconduct in
professional capacity. By using these words it was made clear that the
authority might take action in all cases of misconduct.
• An advocate has duty not only to his client or Court but also to the
profession of which he is a member
• If he does an act which injures the credit of the legal profession, his act
may be taken as misconduct

Important Cases:-
1) R.D. Saxena v. Balram Prasad Sharma (1999)
• The Supreme Court has held that refusal of advocate to return the files to
his client will amount to misconduct under section 35 of the Advocates
Act.
• There is nothing known as irrevocable vakalatnama. The Court has held
that when the faith and confidence of the client is lost in their performance
as Advocates, there is no other choice but to seek permission to engage
some other Advocate. In such situation, even if the Advocate feels that he
has any genuine claim or grievance against his client, the appropriate cause
is to return the brief with endorsement of no objection and agitate such
right in an appropriate forum, in accordance with law and not indulge in
arm twisting methods by holding on to the brief.

2) State of Orissa v. Nalinikanta Muduli (2004)
In a case the Supreme Court has made it clear that seeking
repeated adjournments for postponing examination of
witnesses present in the Court is a misconduct and an
advocate may be punished therefor. The Supreme Court has
held that members of Bar are officers of the Court. They have
a bounden duty to assist the Court and not mislead it.

3) Common Cause v. Union of India (1999):
The Court has held that the lawyers have no right to strike and
therefore, strike by lawyers is illegal and unethical. If, on the ground of
strike, a lawyer abstains from appearing in court in a case in which he
holds Vakalatnama for the client, he is committing a professional
misconduct, a breach of contract, a breach of trust.

4) Advocate RK Anand Case (2009):
This case involved senior advocate RK Anand and another advocate, IU
Khan. They were caught on camera trying to influence a witness. The Bar
Council of India took disciplinary action against both lawyers for their
unethical conduct, highlighting the importance of maintaining the integrity
of the legal profession.
5) Harish Uppal v. Union of India (2003):
This case addressed the issue of lawyers advertising their services, which was
considered unethical in India. The Supreme Court of India ruled that lawyers
could not advertise, and any such advertising would be treated as
professional misconduct.

6) Re: V. Papi Reddy (2001):
This case involved an advocate who was accused of accepting a bribe in
connection with a criminal case. The Supreme Court of India held that the
advocate's involvement in corruption constituted professional misconduct.
7) V.P. Kumaravelu v. The Bar Council of India (1997)
The Court has observed that whether negligence will amount to
professional misconduct or not will depend upon the facts of each case.
Gross negligence in the duties partaking of shades of delinquency would
undoubtedly amount to professional misconduct. But negligence without
moral turpitude may not amount to professional misconduct.

8) P.D. Khandelkar v. Bar Council of Maharashtra (1983):-
The Supreme Court has observed: There is a world of difference between
the giving of improper legal advice and the giving of wrong legal advice.
Mere negligence unaccompanied by any moral delinquency on the part of
a legal practitioner in the exercise of his profession does not amount to
professional misconduct.
9) UP. Sales Tax Service Association v. Taxation Bar Association (1995)
The Supreme Court has made it clear that if an advocate attends court with
fire-arms, his conduct will be inconsistent with the dignity of the legal
profession. Such conduct is not befitting to dignity of the legal profession.

10) Hikmat Ali Khan vs Ishwar Prasad Arya (1997)
An advocate who assaults his opponent in the Court-room with a knife
and is convicted of the offence of attempting to commit murder is
unworthy of remaining in the legal profession and his such conduct
calls for the imposition of the punishment of removal of the name from
the State roll of the advocates

Quantum of Punishment
• An advocate should not be punished for misconduct unless the proof
of his misconduct is free from doubt.
• The Privy Council observed: "Before dealing with the charges, it is
right to state that, in their Lordships' opinion, charges of professional
misconduct must be clearly proved and should not be inferred from
mere ground for suspicion, however reasonable or what may be mere
error of judgment or indiscretion”
• Before the disciplinary committee is essentially quasi-criminal in
nature and therefore the standard of proof for this purpose is the
same which is required for convicting an accused in a criminal charge
The benefit of doubt is given to the advocate concerned

Procedure
• 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
(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
(Where an advocate is suspended from, he shall, during the period of
suspension, be debarred from practising in any court or before any authority
or person in India)

Procedure:- Chapter I Part VII of the Rules
framed by the Bar Council of India
Rule 1 makes it clear that:-
- A complaint against an advocate shall be in the form of a petition duly
signed and verified as required under the Code of Civil Procedure. It also
provides that if the complaint is not in English, a translation thereof in
English shall be filed along with the same.
- The Secretary of the Bar Council may require the complainant to pay the
prescribed fees, if paid, to remove any defects and call for such particulars or
copies of the complaint or other documents as may be considered necessary.
- Rule 1 makes it clear that no matter taken up by a State Bar Council suo
motu or arising on a complaint made under Section 35 of the Act shall be
dropped solely by reason of its having been withdrawn, settled or
otherwise compromised or that the complainant does not want to proceed
with the enquiry.

- Rule 3 provides that after a complaint has been referred to a
disciplinary committee by the Bar Council, the Registrar shall
expeditiously send a notice to the advocate concerned requiring him
to show cause within a specified date on the complaint made against
him and to submit the defence, documents and affidavits in support
of such defence and further informing him that in case of his non-
appearance on the date of hearing fixed, the matter shall be heard
and determined in his absence.

• Rule 4 provides that the Chairman of the disciplinary committee
shall fix the date, hour and place of the enquiry which shall not
ordinarily be later than 30 days from the receipt of the reference.
The Registrar is required to give notice of such date, hour and place to
the complainant or other person aggrieved, the advocate concerned
and the Attorney-General or the Additional-Solicitor-General of India
or the Advocate-General, as the case may be, and also to serve on
them copies of the complaint and such other documents

• Rule 5 deals with the manner of service of the notice. The cost of the
notice shall be borne by the complainant, unless the disciplinary
committee otherwise directs. The notice may be sent ordinarily
through messenger or by registered post-acknowledgment due and
on the advocate or the party concerned or his agent or other person a
provided for in Order V of the Civil Procedure Code.

• Where the notice sent to any party cannot be served as aforesaid it
may be served by affixing a copy thereof in some conspicuous place in
the office of the Bar Council and also upon some conspicuous part of
the house in which the party concerned is known to have last resided
or had his office or in such other manner as the Committee thinks fit.
Such service shall be deemed to be sufficient service (Constructive
service)

• According to Rule 6 of Chapter I of Part VII of the Bar Council of India
the parties can appear in person or by an advocate who should file
vakalatnama giving the name of the Bar Council in which he is
enrolled.
• Rule 7 of Chapter I of Part VII provides that if in an enquiry on a
complaint received, either the complainant or the respondent does
not appear before the disciplinary committee in spite of service of
notice, the committee may proceed ex parte or direct fresh notice to
be served. Any such order for proceeding ex parte may be set aside
on sufficient cause being shown when an application is made
supported by an affidavit, within 60 days of the passing of the ex
parte order.

- Rule 8 of Part VII provides that the disciplinary committee shall hear the
Attorney-General or the Additional Solicitor-General of India or the
Advocate-General, as the case may be of their advocate and parties or their
advocates, if they desire to be heard and determine the matter on
documents and affidavits, unless it is of the opinion that it should be in the
interest of justice to permit case the procedure for the trial of civil suit, shall
as far as followed.
- Rule 9 of Chapter I of Part VII provides that evidence given before the
disciplinary committee shall be recorded preferably in English by any
member of the committee or any other person authorised by the
committee. The evidence so recorded shall be signed by the Chairman or if
the Chairman is not there when the evidence is recorded by any member
of the Committee

• Rule 10 of Chapter I of Part VII requires every disciplinary committee
to make a record of its day-to-day proceedings. It provides that the
Registrar of the disciplinary committee shall maintain a case diary
setting out shortly in order of date all relevant information
concerning the date of filing, the date for hearing and dispatch and
service of the notices on the parties or the advocates or the
Attorney-General or the Additional Solicitor-General or the
Advocate-General, as the case may be, of statements or petitions filed
and/or of the order thereon and of other proceedings in the matter
before the Committee.

• Rule 14 makes it clear that the finding of the majority of the
members of the disciplinary committee shall be the finding of the
committee. The reason given in support of the finding may be given
in the form of a judgment and in the case of a differences of opinion,
any member dissenting shall be entitled to record his dissent giving
his own reasons. It shall be competent for the disciplinary committee
to award such costs as it thinks fit.

Common examples:-
• Conflict of Interest: When a lawyer has a personal interest that
conflicts with the interests of their client, this can lead to professional
misconduct. For instance, if an attorney represents two clients with
opposing interests in the same case without proper disclosure, it can
be considered a breach of professional ethics.
• Misappropriation of Client Funds: Lawyers are entrusted with their
clients' money, and misappropriating these funds is a serious breach
of trust. This includes using client funds for personal expenses or
failing to maintain proper trust accounts.

• Incompetence or Negligence: Lawyers are expected to provide competent
and diligent representation to their clients. Incompetence or negligence in
handling legal matters can be considered professional misconduct.
• Violation of Attorney-Client Privilege: Breaching the attorney-client
privilege by disclosing confidential information without the client's consent
can be a severe violation of professional ethics.
• Fraud or Deceit: Engaging in fraudulent or deceitful conduct, whether in
court or while dealing with clients, is considered professional misconduct.
• Advertising: Lawyers are subject to strict rules regarding advertising their
services. Violating these rules by making false or misleading claims can be
seen as professional misconduct

Rights of Advocate:-
• Section 29 of the Advocates Act, 1961, makes it clear that advocates
are only recognised class of persons who are entitled to practise law.
This section, thus, provides for a unified bar for the whole of India. In
order to understand the true effect of this section, it should be read
along with the relevant provisions of Section 55 of the Advocates Act.
Section 55 saves the rights of certain existing legal practitioners,
namely, vakils, pleaders, attorneys in the High Courts at Bombay and
Calcutta, mukhtars and agents.

• Section 30 of the Advocates Act provides that subject to the
provisions of this Act, every advocate whose name is entered in the
State roll shall be entitled as of right to practise throughout the
territory to which this Act extends (i) in all Courts including the
Supreme Court; (ii) before any Tribunal or person legally authorised to
take evidence; and (iii) before any other authority or person before
whom such advocate is by or under any law for the time being in
force entitled to practise.

Harish Uppal v. Union of India
• The advocates' right to appear and conduct cases in court is not
absolute. It is subject to rule framed by the Supreme Court under
Article 145 or the High Court under section 34 of the Advocates Act.
The Court has held that the advocate has no right to go on strike or
give call of boycott. The Court will not adjourn cases because
lawyers are on strike. If an advocate holding Vakalatnama of a client
abstains from attending work due to strike, call, he shall be personally
liable to pay costs which shall be in addition to damages which he
might have to pay to his client for loss suffered by him.

• The Court has held that only in the rarest of rare cases where the
dignity, integrity and independence of the Bar and/or the Bench are
at stake, the Court may ignore to a protest abstention from work for
not more than one day. It will be for the Court to decide whether or
not it involves dignity or integrity or independence of the Bar and/or
the Bench. Therefore, in such cases the President of the Bar must
first consult the Chief Justice or the District Judge before the
Advocates decide to absent themselves from the Court the decision
of the Chief Justice or the District Judge would be final and have to be
abided by.

• However, Section 32 of the Advocates Act make it clear that
notwithstanding anything contained in this Chapter (Sections 29 to 34)
Court authority or person may permit any person, not enrolled as an
advocate under this Act to appear before or him in any particular case.
• In Surender Raj Jaiswal v. Smt. Vijaya Jaiswal, the A.P. High Court has held
that the right of practice is different from the right of appearance in a
particular case. The right of practice is a right to the advocate to practice
the profession of law before all Courts, Tribunals, authorities, etc.
whereas right to appear in a particular case on the permission granted by
the Court under section 32 of the Advocates Act is an exception to the
right of practice by the Advocates. It is clear from section 32 that the
Court cannot permit a person to appear in general in all cases and that
right can be exercised by the advocates only.

• In Jaymal Thakore v. Charity Commissioner," the Gujarat High Court has
held that section 30 of the Advocates Act confers right to practice law only
on the enrolled or registered advocates. However, section 32 confers
discretionary power on the' Court to permit appearance to any non-
advocate for a party. Section 32 restricts the power of the Court to permit
any non-advocate only to appear on behalf of the party in any particular
case. It is open to the Court to grant or withhold the permission in its
discretion. Even after grant of permission the Court can withdraw it
halfway if the representative proves himself reprehensible. The
antecedent, the relationship, the reasons for requisitioning the services
of the private person and a variety of the circumstances must be
gathered before grants or refusal of permission.

• Section 49(1Xah) of the Advocates Act empowers the Bar Council of
India to make rules in relation to the conditions subject to which ah
advocate shall have the right to practise and the circumstances under
which a person shall be deemed to practise as an advocate in a Court.
In the exercise of the power the Bar Council of India has made certain
rules. Chapter III of Part VI of the Rules of Bar Council of India
contains several rules dealing with the conditions for right to
practice. The provisions of these rules may be summed up as follows:

(i) It is the duty of every advocate to see that his name appears on the
roll of State Bar Council within which jurisdiction he ordinarily
practises.
(ii) An advocate shall not enter into a partnership or any other
arrangement for sharing renumeration with any person or legal
practitioner, who is not an advocate.
(iii) Every advocate is required to keep informed the Bar Council on the
roll of which his name stands and of every changes of his address. .
(iv) An advocate who voluntarily suspends the practice for any reason
whatsoever is required to intimate by the registered post to the State
Bar Council on the rolls of which his name is entered

V) Rule 8 of Chapter III of the Rules of Bar Council of India provides that
no advocate shall be entitled to practise, if in the opinion of the
Council, he is suffering from such contagious disease as makes the
practice of law a hazard to the health of others. The disqualification
shall last for such period as the Council directs from time to time.
Vi) Judicial officer otherwise ceasing to be in service, shall not practise
for a period of two years in the area in which he exercised jurisdiction
for a period of 3 years before his retirement or otherwise ceasing to be
in service. However, nothing in this rule shall prevent any such person
from practising in any Court or Tribunal or authority of superior
jurisdiction to one in which he held office.

Ethics of Legal Profession
• According to the canons of professional ethics of American Bar
Association in fixing fees the lawyers should avoid charges which
over-estimate their advice and services as well as those which
undervalue them.
• with the object to prevent unhealthy competition, provides that an
advocate shall not accept a fee less than the fee provided under the
rules when the client is able to pay the same

Contingent fee.
- The fee depending upon the success of the suit or proceeding (i.e.,
contingent fee) is regarded as against the public policy. The agreement
for contingent fee is hit by Section 23 of the Indian Contract Act.
- Besides rule 20 of Chapter II, Part VI makes it clear that an advocate
shall not stipulate for a fee contingent on the result of litigation or
agree to share the proceeds thereof. In such condition an advocate
cannot be expected to act with sense of detachment or objectivity. In
such condition an advocate makes himself as a client in the garb of an
advocate. Such an agreement, thus, degrades the honourable legal
profession.

Advocate’s Duty Towards the Court:-
1. Act in a dignified manner.
2. Respect the court.
3. Not communicate in private.
4. Refuse to act in an illegal manner towards the opposition
5. Refuse to represent clients who insist on unfair means.
6. Appear in proper dress code.
7. Refuse to appear in front of relations
8. Not to wear bands or gowns in public places
9. Not appear in matters of pecuniary interest.

Advocate’s Duty Towards the Client:-
1. Bound to accept briefs.
2. Not withdraw from service.
3. Uphold the interest of the client.
4. Not disclose the communications between the client and himself.
5. Not receive interest in actionable claim.

- Advocate’s Duty Towards the Opponents:-
1. Not to negotiate directly with the opposing party.
2. Carry out legitimate promises made
- Advocate’s Duty Towards Fellow Advocates
1. Not advertise or solicit work
2. Not promote the unauthorized practice of law

Right of pre-audience: Section 23
S. 23. Right of pre-audience
1) The Attorney-General of India shall have pre-audience over all other
advocates.
2) Subject to the provisions of sub-section (1), the Solicitor-General of India
shall have pre-audience over all other advocates.
3) Subject to the provisions of sub-sections (1) and (2), the Additional
Solicitor-General of India shall have pre-audience over all other advocates.
3A) Subject to the provisions of sub-sections (1), (2) and (3), the second
Additional Solicitor-General of India shall have pre-audience over all other
advocates.

4) Subject to the provisions of sub-sections (1), [(2), (3) and (3A)], the
Advocate-General of any State shall have pre-audience over all other
advocates, and the right of pre-audience among Advocates-General
inter se shall be determined by their respective seniority.
(5) Subject as aforesaid— (i) senior advocates shall have pre-audience
over other advocates, and ii) the right of pre-audience of senior
advocates inter se and other advocates inter se shall be determined by
their respective seniority.

• 24. Persons who may be admitted as advocates on a State roll.
24. Persons who may be admitted as advocates on a State roll.―
Subject to the provisions of this Act, and the rules made thereunder, a person shall be
qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions,
namely:―
(a) he is a citizen of India: Provided that subject to the other provisions contained in this
Act, a national of any other country may be admitted as an advocate on a State roll, if
citizens of India, duly qualified, are permitted to practise law in that other country;
(b) he has completed the age of twenty-one years;
(c) he has obtained a degree in law
(d) he has paid, in respect of the enrolment, stamp duty, if any, chargeable under the
Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee payable to the State Bar Council

Important Cases on S. 24. Persons who may be
admitted as advocates on a State roll
1. Indian Council of Legal Aid and Advice & Ors. v. Bar Council of
India & Anr.(1995)- The Court has made it clear that the rule
debarring a person who have completed the age of forty-five years
is beyond the rule-making power of the Bar Council of India.

2. Dr. Haniraj L. Chulani v. Bar Council of
Maharashtra & Goa (1996)
• The Supreme Court has held that the rule made by the Bar Council
restricting the entry of person already carrying on other profession is not
arbitrary and, therefore, not against Article 14 of the Constitution. It does
not impose unreasonable restriction and as a result it is not violative of
Article 19(1)(g) which guarantees all citizens right to practise any
profession or to carry on any occupation, trade or business. The Court has
observed that Article 191(g) does not provide an absolute right to
practise any profession or carry on any occupation, trade or business. It is
subject to clause (6) of Article 19 which provides that nothing in sub-
clause (g) of Clause (1) of Article 19 shall affect the operation of any
existing law in so far as it imposes or prevents the State from making any
law imposing, in the interests of the general public, reasonable
restrictions on the exercise of the right conferred by the said sub-clause.

3. Thomas P.C. v. Bar Council of Kerala (2006)- Being Priest or Nun is
not disqualification to get enrolled as an advocate. The Court has held
that being priest or nun by itself cannot be treated as disqualification
for being enrolled as an advocate. If a priest or nun is employed as a
full time teacher or nurse he/she may be ineligible for enrolment. In
such case he may be asked to quit the employment as a condition for
enrolment.

S. 24A. Disqualification for enrolment
convicted of an offence involving moral turpitude
 convicted under the Untouchability (Offences) Act, 1955 i.e
Protection of Civil Rights Act, 1955
dismissed or removed from employment or office under the State
on any charge involving moral turpitude
Exception
1. after a period of two years has elapsed since his released or
dismissal or, as the case may be, removal
2. person who found guilty is dealt with under the provisions of the
Probation of Offenders Act, 1958

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