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.
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