DISCIPLINARY COMMITTEE PROCEEDINGS

Sasi K.G.

01. Introduction

Disciplinary Committee proceeding are meant to address the misconducts by advocates. A Bar Council shall constitute one or more disciplinary committees, each of which shall consist of three persons of whom two shall be persons elected by the Council from amongst its members and the other shall be a person co-opted by the Council from amongst advocates who have for at least ten years been advocates on a State roll and who are not members of the Council, and the seniormost advocate amongst the members of a disciplinary committee shall be the Chairman thereof.

02. Professional or Other Misconduct – Disqualifications

Professional misconduct means dereliction of duty relating to Legal profession. Under S.35 of the Advocates Act, An Advocate is punishable not only for professional misconduct but also for other misconduct. In State of Punjab v. Ram Singh, (AIR 1992 SC 2188) the Supreme Court held that the term 'misconduct' may involve moral turpitude, it must be misproper or wrong behaviour, unlawful behaviour, wilful in character, a forbidden act, a transgression of established and definite rule of action or code of conduct, but not mere error of judgment, carelessness or negligence in performance of duty; the act complained of bears forbidden quality or character.

03. Functions of State Bar Councils in Dealing with the Disciplinary Proceedings

The disciplinary committee of a State Bar Council shall dispose of the complaint received by it under Section 35 expeditiously and shall conclude within a period of one year from the date or 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.  

04. Punishment of Advocates for misconduct

The Disciplinary committee after hearing the Advocate concerned and the Advocate general comes to the conclusion that the misconduct is proved that it may pass any of the following orders, namely

(i)                 Reprimand the Advocate.

(ii)               Suspend the Advocate from the practice for such period as it thinks fit.

(iii)             Remove the name of the Advocate from the Advocates Roll.

05. Functions of Bar Council of India in Dealing with the Disciplinary Proceedings

The Disciplinary Committee of the Bar Council of India shall having the following powers.

1.      It shall enquire the charges of the professional misconduct against Advocates whose name is there in the roll of any of the State Bar Council.

2.      Enquire the complaints in which the Disciplinary Committee of the State Bar Council has not completed the enquiry within one year from the date of receipt of the complaint.

3.      Hear the appeal against the order of the State Bar Council.

4.      Allowing the State Bar Council to review its own order.

Bar council of India must dispose of a case before it expeditiously.

06. Powers of Disciplinary Committee under the Advocates Act, 1961

1. Transaction of business

The disciplinary committees shall meet at such time and place and shall observe such rules or procedure in regard to the transaction of business at their meetings as may be prescribed.

2. Powers of Disciplinary Committee

The Disciplinary Committees of the State Bar Council and of the Bar Council of India are having powers like a civil court. All proceedings before a disciplinary committee of a Bar Council shall be deemed to be judicial proceedings.

3. Cost of proceedings before a disciplinary committee

The disciplinary committee of a State Bar Council or Bar council of India may make such order as to the costs of any proceedings before it as it may deem fit and any such order shall be executable as if it were an order of Supreme Court or of the High Court respectively.

4. Changes in constitution of disciplinary committees

Whenever a disciplinary committee of the State Bar Council or of the Bar Council of India ceases to exercise jurisdiction and is succeeded by another committee, the succeeding committee may continue the proceedings from the stage at which the proceedings were so left by its predecessor committee.

07. Procedure to be followed by the disciplinary committee of a State Bar Council in disciplinary proceedings

1. Complaint

A complaint against an advocate shall be in the form of a petition in English Hindi or regional language duly signed and verified as required under the Code of Civil Procedure, 1908. Prescribed fees has to be paid. A complaint in order, shall be registered and placed before the Bar Council for perusal.

2. Procedure after a complaint has been referred to a Disciplinary Committee

On receipt of a complaint the Disciplinary Committee sends a notice in Form Nos. E-1 and E-2 to the Advocate concerned requiring him to show cause and to submit the statement of defense. The Chairman of the Disciplinary Committee shall fix the date, hour and place of the enquiry which shall not ordinarily be later than thirty days from the receipt of the reference. On statement of defense complainant may file a replication. The parties can appear in person or by an advocate. Any order for proceeding ex parte may be set aside within 60 days of the passing of such order. Witnesses and document can be admitted in evidence.  Every Disciplinary Committee shall make a record of its day to day proceedings. No Disciplinary enquiry 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. The finding of the majority of the members of the Disciplinary Committee shall be 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 difference of opinion, a dissent may be recorded. The Disciplinary Committee may award such cost as it thinks fit.

3. Proceedings to be in Camera

All the proceedings before the Disciplinary Committee shall be held in camera

4. Inspection of records and copies

Save as otherwise directed by the Disciplinary Committee of the Chairman thereof, inspection of any of the records in any proceeding before the Disciplinary Committee may be permitted to the parties or their advocates on presentation of an application

5. Copies of Final Orders

Each of the parties in the proceedings are entitled for a certified copy of the final order free of cost.

08. Remedies for Professional or Other Misconduct

01.  Review of orders by Disciplinary Committee

According to S.44, the Disciplinary committee of a State Bar council is empowered to review its own order either on its own motion or an application by the aggrieved party within 60 days from the date of order. The State Bar council then will hear the concerned parties before making any order. Any order passed in review shall have effect only when it is approved by the Bar Council of India. The Disciplinary committee of the Bar Council of India has no power to review its own order.

02.  Appeal to the Bar Council of India

Any person aggrieved by the order of the disciplinary committee of the State Bar Council, or the Advocate general of the State may within 60 days from the date of the order may prefer an appeal to the Bar Council of India. The appeal shall be filed in person or through by Advocate or by registered post. He must submit 5 copies of appeal memorandum along with the attested copy of the order of the State Bar Council. Such appeal shall be heard by the disciplinary committee of the Bar Council of India and after hearing it may pass any order it deems fit.  ie., it can confirm. The order of the State Bar Council, or increase or reduce the punishment, or totally remove the punishment.

03. Application for Stay

For the convenience of filing an appeal against the order of the State Bar Council or the Bar Council of India, the aggrieved party can file an application before the concerned Bar Council which has passed the order to stay the order still appeal is filed. After filing the appeal before the Bar council of India or before the Supreme Court the aggrieved party can ask for the stay of the order till the disposal of the appeal.

04.  Appeal to the Supreme Court

Any person aggrieved by an order made by the Disciplinary committee of the Bar Council of India, or the Attorney General of India may within 60 days from the date of order prefer an appeal to the Supreme court.

09. Disqualification and Removal from Rolls

Punishment of removal from the rolls of Bar Council should be ordered on the grounds of offences involving moral turpitude, offences under the provisions of the Untouchability (Offences) Act, 1955, obtaining a certificate of Backward class,  offence of misappropriation, conviction under Section 307 of IPC for the assault on opponent in Court room with a knife, etc.. An advocate whose name is struck off the State rolls should not practice in any Court and the certificate granted to him under Section 22 of the "Advocates Act, in respect of his enrolment shall be recalled.

10. Some Types of Misconducts

Professional misconduct arises as a result of serious dereliction of duties to the court, to the client, to the opponent, to the colleagues, to the profession, to the public etc. Following are some of the instances of professional misconduct.

1.      Making false allegation against judicial officers.

2.      Deliberately lodging groundless criminal complaint.

3.      Making groundless and insulting charges against witness. Intentional harassment of the witness by avoiding the cross examination by excuses is professional misconduct. N. G. Dastane v. Shrikant S. Shivde, 2001(4) RCR (Cri.) 491 (SC): AIR 2001 SC 2028.

4.      Refusing to accept a case without justification.

5.      Attending court proceedings in drunken state.

6.      Attempting to influence judicial officers for favour.

7.      Carrying on other trade or business. Running of STD/Photocopier in the name of advocate. Licence cancelled for 5 year. Bhupinder Kumar Sharma v. Bar Ass. Pathankot, Jt 2001 (9) (SC) 480: AIR 2002 SC 41

8.      Committing crimes.

9.      Financing litigation.

10.  Obtaining client’s signature on blank papers.

11.  Shouting slogans or holding demonstration in front of the court.

12.  Approaching investigative officers for favour during investigation of a case.

13.  Writing letter to the presiding officer in connection with the pending case.

14.  Tampering with the witness

15.  Suggesting the client to bribe the presiding officer. Letter to client to arrange the money for bribing the judge. Licence cancelled. Sambhu Ram Yadav v Hanuman Das Khotey. JT 2001 (5) (SC) 618: AIR 2001 SC 2509.

16.  Moving application before any court or authority before informing that a similar application has been presented before any authority or rejected by any authority.

17.  An exclusively retained pleader accepting a case against the client from the opposite party.

18.  Failure to appear in the proceedings of a case without any sufficient reason. Non – appearance of the counsel in the case is professional misconduct. For withdrawal notice to the client be given. G. Sridher & Anr. v. State of A.P. 2005(2) RCR(Cri.) 116 A.P.

19.  Retaining the judgment of the trial court with the intention of getting himself getting himself engaged in appeal. Retention of files of the clients for non-payment of dues by the client is misconduct on the part of the advocate R.D. Saxena v. Balram Prasad Sharma, JT 2000 (9) (SC) 432: AIR 2000 SC 2912.

20.  Presenting the plaint with insufficient court fee stamp, when the client has given money for the court fee.

21.  Alleging partiality against presiding officer in open court.

22.  Tampering with records and documents.

23.  Writing letters to persons for soliciting cases.

24.  Reporting no instructions from his client and subsequently appearing for the opposite party in the same suit.

25.  Advertising about his profession.

26.  Taking advantage of the ignorance and illiteracy of the clients, demanding money from them on false representations that is required for court purposes and misappropriating the same.

27.  Misappropriation of decreed amount payable to the client.

28.  Giving wrong advice to the client.

29.  Taking money from the client for the purpose of giving bribe.

30.  Suppression of truth.

31.  Changing sides.

32.  Indecent cross examination.

33.  Committing contempt of court.

34.  False identifications of deponents.

35.  Gross negligence involving moral turpitude.

36.  Appearing without authority ie. On forged vakalath.

37.  Failure to attend the trial.

38.  Attesting forged affidavit.

39.  Abstaining from appearing in court on the ground of strike called by the Bar association. Advocates Act- Strike by the advocates is illegal and unconstitutional. Client can sue for the damages due to the non-appearance of the advocate. Raman Services Pvt. Ltd. v. Subhash Kapoor, 2001 SCCC (Cri.) 3: JT 2000 (Suppl.2) (SC) 546: AIR 200 SC 207; Ex. Capt. Harish Uppal v. U.O.I, JT 2002 (10) (SC) 310 Const. Bench.

40.  Misleading the court resulting in erroneous order.

41.  Fees charged by the advocate but suit not filed. It amounts to misappropriation of amount. D.S. Dalal v. State Bank of India, 1993 (2) RRR 116: AIR 1993 SC 1608.

42.  Appearance of another counsel in the case without obtaining the permission of the counsel already engaged by the client. it is misconduct on the part or the advocate appearing afresh. Giri Raj Parshad Sharma v. Rajasthan Uni. 1987 civil Court Cases 37

11. Conclusion

The objective of Disciplinary Committee Proceedings is to uphold the nobility of the profession of advocacy by punishing those who misconduct. The fact that numerous rulings Disciplinary Committees of the Bar Council of India are being overruled, proves that the Disciplinary Committees are weak in appraising the justice in the standards of the Supreme Court. One of the reasons behind this is that Bar Councils are associations of the advocates and they view advocates with a sympathetically.