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Table of contents

Introduction
Legal ethics
Ethics of lawyers profession
Advocates act 1961
Provision of advocates act 1961
Code of Conduct Prescribed For Advocate
Contempt of court as professional misconduct
Judicial decisions
Procedure to be followed on notice of misconduct
Critique
Conclusion
Bibliography

INTRODUCTION
Legal ethics, accountability of lawyers and bench-bar relations is one of the
four practical training papers included in the new syllabus for the LL.B degree. It
requires the students to study thoroughly the various concepts like court, contempt
of court, court of record, legal ethics, professional or other misconduct, etc. It
requires the students to study the provisions of the Advocates Act, Contempt of
court Act and also of the Constitution relating to the contempt of court.
Legal ethics
The administration of justice is the process and structure which allows conflicts
between parties to be settled by a body dedicated to that purpose.
According to Learned C.L. Anand 1 a sound system of the administration of
justice

should

possess

three

ingredients,

namely

well

planned body of laws based on wise concepts of social justice, a judicial hierarchy
comprised of theBench and the Bar, learned in the law and inspired by high
principles of professional conduct and existence of suitable generation to ensure
fair trial. Thus, the legal profession is one of the three ingredients that play an
important role in the administration of justice. The Lawyers assist the
court in arriving at a correct judgment. without the assistance of the lawyers it
would be a super h u m a n t a s k for the judge to arrive at a satisfactory judgment.
Thus, an advocate renders assistance to the courts in the administration of justice

1 C.L. Anand, General Principles of Legal Ethics,39 /Law Books Co., Allahabad, 1965

and also gives professional advice to members of the public who require their
services.
Legal profession has been created by the state for the public good and
not for private gain. An advocate is an officer of the court. The court acts on
his statements. Consequently, the essence of the profession lies in the three things:
I.
II.
III.

organization of its members for the performance of their function.

maintenance of certain standards, intellectual and ethical, for the dignity of t
he profession.
subordination of pecuniary gains to efficient service2.

An Advocate practicing law is under a triple obligation. An obligation to his clients

to be faithful to them till the last, an obligation to the profession not to besmirch its
name by anything done by h i m , a n d a n o b l i g a t i o n t o t h e c o u r t t o b e
a n d t o r e m a i n a d e p e n d a b l e p a r t o f t h e m a c h i n e r y through which
justice is administered. -or fulfillment of these obligations legal ethics has been
enacted.
Legal ethics may be taken to mean the body of rules and practice which determine
the professional conduct of the members of bar. The main object of legal ethics has
well been explained by the Chief Justice Marshall3The fundamental aim of Legal

2 C.L. Anand, General Principles of Legal Ethics, 30 /Law Book Co., Allahabad, 1965

3 C.L.Anand, General Principles of Legal Ethics, 63(/Law Book Co., Allahabad, 1965).

Ethics is to maintain the honour and dignity of the Law Profession, to secure a
spirit of friendly co-operation between the bench and the brain the promotion of
the highest standards of justice, to establish honorable and fair dealing of the
counsel with his client, opponent and witness, to establish a spirit of brother-hood
in the bar itself and to secure that lawyers discharge their responsibilities to the
community generally.
Actually the legal profession is a profession of great honour. It has been created
not for private gain but for public good. It is a partner with the judiciary in the
administration of justice. An advocate is an officer of the court. The court acts on
his statements. To maintain the honour of the legal profession, the Advocate Act
has been passed and the Bar Councils have been established. The State Bar
Councils and the Bar Council of India can punish the advocate for the professional
or other misconduct. From the preamble of the rules made by the Bar Council of
India it becomes clear that these rules contain canons of conduct and etiquette
adopted as general guides and the specific mentioned thereof should not be
construed as a denial of the existence of other equally imperative, though not
specifically mentioned
Ethics of lawyers profession
A lawyers profession is meant to be a divine or sacred profession by all means. In
every profession, there are certain professional ethics that need to be followed by
every person who is into such a profession. But there is the fact that professional
misconduct is a common aspect, not only in other professions but also in advocacy
also. In simple terms, it means certain acts done by the persons which seem to be
unfit for the profession as well as which are against certain ethics in this field

The attributes of a profession are:

Existence of a body of specialized knowledge or techniques.
Formalized method of acquiring training and experience.
Establishment of a representative organization with professionalism as its
goal.
Formation of ethical codes for the guidance of conduct.
Charging of fees based on services but with due regards to the priority of
service over the desire of monetary rewards.
Misconduct means any acts which are unlawful in nature even though they are not
inherently wrongful. Before the Advocates Act, 1961, we had the Legal
Practitioners Act, 1879. There is no definition given for the term misconduct in
the Act, but the term unprofessional conduct is being used in the Act. The
expression professional or other misconduct under section 35 of the Advocates
Act is not confined to the acts committed

in professional capacity. Even the

misconduct in capacity other than professional capacity is included within the

meaning

of the

expression

professional or

other

misconduct. The

Bar Council of India has made several rules so as to specify the duties of an
advocate towards the court, client, opponent and colleagues, etc.
Some of the instances of professional misconduct are as follows:

Dereliction of duty
Professional negligence
Misappropriation
Changing sides
Contempt of court and improper behaviour before a Magistrate
Furnishing false information
Giving improper advice
Misleading the clients in court
6

 Not speaking the truth

Disowning allegiance to the court
Moving application without informing that a similar application has been
rejected by another authority
Suggesting to bribe the court officials
Forcing the prosecution witness not to say the truth.4

Advocates Act, 1961

The provisions of Section 35 of the Advocates Act deal with professional
misconduct of lawyers and advocates in India, which read as:
A person is found guilty of professional misconduct; it shall refer the case to a
disciplinary committee, shall fix a date of hearing and issue a show cause notice to
the Advocate and the Advocate General of the State. The disciplinary committee of
the State Bar Council, after being heard of both the parties, may:
Dismiss the complaint, or where the proceedings were initiated at the
instance of the State Bar Council, directs that proceedings be filed;
Reprimand the advocate;
Suspend the advocate from practice for such a period as it deems fit;
Remove the name of an advocate from the state roll of advocates.5
Misconduct is of infinite variety; this expression must be understood in a broad
meaning, such that it extends the meaning under natural law, and there is no

4 Retrieved on: http://www.legalservicesindia.com/article/print.php?art_id=1665

5 Retrieved on: https://indiankanoon.org/doc/1460739/

7

justification for restricting their natural meaning. Section 49 of the Advocate Act
empowers the Bar Council of India to frame rules and standards of professional
misconduct. Under the Act, no person has a right to make advertisement or
soliciting; it is against advocates code of ethics. He is also not entitled to any
advertisement through circulars, personal communications or interviews, he is not
entitled to demand fees for training and to use name/service for unauthorized
purposes.6

Provisions in Advocates act 1961

The advocates act 1961 is a comprehensive legislation that regulates the legal
practice and legal education in India. It envisages for the establishment of Bar
Council of India and State Bar Councils with various disciplinary committees to
deal with misconduct of the advocates. It also provides for the provisions relating
to the admission and enrolment of advocates and advocates right to practice.
Chapter V containing sections 35 to 44 deals with the conduct of the advocates. It
provides for punishment for advocates for professional and other misconduct and
disciplinary powers of the Bar council of India. In order to attract the application of
section 35 of the advocates act the misconduct need not be professional
misconduct alone. The expression used in the section is Professional or other
misconduct. So even conduct unconnected with the profession may account to a
misconduct as for example, conviction for a crime, though the crime was not
commited in the professional capacity. At the same time it is to be noted that a
mere conviction is not sufficient to find an advocate guilty of misconduct, the court
must look in to the nature of the act on which the conviction is based to decide

6 Retrieved on: http://www.legalservicesindia.com/article/article/professional-misconduct-of-lawyers-inindia-1665-1.html

8

whether the advocate is or is not an unfit person to be removed from or to be

allowed to remain in the profession.
Misconduct is of infinite variety, the expression professional or other misconduct
must be understood in their plain and natural meaning and there is no justification
in restricting their natural meaning. The term misconduct usually implies an act
done willfully with a wrong intention and as applied to professional people it
includes unprofessional acts even though such acts are not inherently wrongful.

The Code of Conduct Prescribed For Advocate

Section 49 of the advocates act 1961 empowers the Bar Council of India to frame
rules regulating standards of professional conduct. Accordingly various duties are
prescribed for the advocates some of them are highlighted below.
No advertising or soliciting work, it is against an advocates 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:
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.
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 practicing in subordinate courts. Further, the
9

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 specializes in a
particular kind of work, or that he is or was associated with any person or
organization or with any particular cause or matter.
Not to 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 unauthorized practice; An advocate may not allow
his professional services or his name to be associated with, or be used for
any unauthorized practice of law by any lay agency.
Not to 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 partys advocate. If an advocate
has made any legitimate promises to the opposite party, he should fulfill 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
10

interests of the client by fair and honourable means without regard to any
unpleasant

consequences

to

himself

or

any

other

person.

The above are only few important code of conduct to be observed by an advocate
practicing in India. According to Justice Abbot Parry, there are seven important
qualities that a lawyer should possess, he call these qualities as seven lamps of
advocacy, they are; Honesty, Courage, Industry, Wit, eloquence, Judgement, and
Fellowship. Apart from that the panchsheel of the bar are Honesty, Industry,
Justice, Service and Philisophy and Panchsheel of the bench according to Sri ram
Kishore Rande are, Impartiality, Independence, Integrity and Industry, Judicial
activism and Prayer. Among the various duties of the advocates like, duties to
client, court, public, colleagues and self, selected points can be picked up and
arranged according to the due and relative importance and are called as ten
commandments of advocates they are:
The rules laid down by the Bar Council of India forms the code of conduct for
advocates and in broad sense any violation of such rules or code of conduct can be
termed as professional misconduct. The scope of the term has been still widened by
the

Supreme

Court

in

various

decisions.

Contempt of Court as professional misconduct

Contempt of court may be defined as an offense of being disobedient or
disrespectful towards the court or its officers in the form of certain behaviour that
defies authority, justice, and dignity of the court. 7 In various cases involving

7 Retrieved on: https://en.wikipedia.org/wiki/Contempt_of_court

11

contempt of court, the court held that if any advocate or legal practitioner is found
guilty of the act of contempt of court, he/she may be imprisoned for six years and
may be suspended from practicing as an advocate (In re Vinay Chandra
Mishra)8The court also held that license of the advocate to practice a legal
profession might be canceled by the Supreme Court or High Court in the exercise
of the contempt jurisdiction.
Contempt of court is a serious challenge to the majesty of law. Sometimes it is
committed in ignorance i.e, the contemnor has no knowledge as to the meaning of
the contempt. Consequently, a definition of the expression contempt of court is of
much utility, but unfortunately there is no clear and definite definition of this
expression. The Contempt of Court Act, 1971 defines it as a civil contempt or
criminal contempt .Actually, it is not definition but classification of contempt of
court. Actually, contempt of court cannot be defined exhaustively but a workable
definition is possible. It is an act or omission which interferes or tends to interfere
with the administration of justice, provided that if the interference with the
administration of justice is in the form of disobedience to the order of the court or
breach of undertaking given to the court, it will amount to contempt o court only
when the obedience or breach is willful. Civil contempt has been defined as
willful disobedience to any judgment, decree, direction, order, writ or other process
of a court or willful breach of an undertaking given to a court.
Criminal contempt of court means the publication of any matter or doing of any
other act which has resulted or likely to result in any one of the following
consequences-Scandalizes or tend to scandalize or lowers or tends to lower the

8 AIR 1995 SC 2348.

12

authority of any court; Prejudices or interferes or tends to interfere with, the due
course of any judicial proceeding; or Interferes or tends to interfere with or
obstruct or tends to obstruct the administration of justice in any manner e.g.
interference with the courts officers including the advocate discharging the
professional function, interference with the parties, interference with the witness,
abuse of the process of the court, etc. The contempt of court act makes provision in
respect of the punishment for the contempt of court. Section 12 of the act
provides that save or otherwise expressly provided in this act or in any other law, a
contempt of court may be punished with simple imprisonment for a term which
may extend to six months or with fine which may extend to 2000 rupees or with
both. The contempt of court Act provides remedies to the person charged with the
contempt of court against the order of punishment. According to section 12 of the
act the contemn or may tender apology to the court and if the court is satisfied that
it has been made with real feeling of repentance it may remit the punishment
awarded for the contempt.
Section 19 provides that an appeal shall lie as of right form any order or decision
of the high court in the exercise of its jurisdiction to punish for contempt(a) Where the order or decision is that of a single judge, to a Bench of not less than
two judges of the Court;
(b) Where the order or decision is that of a bench, to the Supreme Court: Provided
that where the order or decision is that of a judicial commission in any union
territory, such appeal shall lie to the Supreme Court
There are many other landmark judgments regarding the cases involving
professional misconduct of the advocates. In the case of V.C. Rangadurai v.
13

D.Gopalan9, the court looked into the matter of professional misconduct in such a
way that the decision was made in a humanitarian manner, considering the future
of the accused in this case. The court held that even so justice has a correctional
edge, a socially useful function, especially if the delinquent is too old to be
pardoned and too young to be disbarred. Therefore, a curative, not cruel
punishment has to be delivered in the social setting of the legal profession. The
court then gave the decision in such a way that it looked at each and every aspect
concerning the case as well as the parties concerned. It adopted a deterrent was of
justice mechanism so that the accused person is awarded certain punishments but
also provided a warning towards such other people who intend to commit acts of a
similar nature. The judgment turned out to be a landmark in cases concerning
professional misconduct as it delivered an effective judgment and but did not
jeopardize the future of the accused person. In various other cases like J.S. Jadhav
v. Musthafa Haji Muhammed Yusuf10, the court delivered the decision in such a
way that it created a notion in the minds of the wrongdoers that offenders will be
punished accordingly. In Sambhu Ram Yadav v. Hanuman Das Khatry 11, a
complaint was filed by the appellant against an advocate to the Bar Council of
Rajasthan, that while appearing in a suit as a counsel, he wrote a letter stating that
the concerned judge, before whom the suit is pending accepts bribes, and asked for

9 V.C. Rangadurai v. D. Gopalan and ors 1979 AIR 28

10 J.S Jadhav v. Musthafa Haji Muhammed Yusuf and ors 1993 AIR 1535

11 2001 6 SCC 1. 165

14

Rs. 10,000 to bribe and influence the judge to obtain a favourable order. The
Disciplinary Committee, holding that the advocate was guilty if misconduct,
stated that such an act made the advocate totally unfit to be a lawyer. The
Supreme Court, upholding the finding of the Rajasthan Bar Council held that the
legal profession is not a trade or business. Members belonging to the profession
have a particular duty to uphold the integrity of the profession and to discourage
corruption in order to ensure that justice is secured in a legal manner. The act of the
advocate was misconduct of the highest degree as it not only obstructed the
administration of justice, but eroded the reputation of the profession in the opinion
of

the

public.

In another case, Noratanman Courasia v. M. R. Murali 12the Supreme Court

explored the amplitude and extent of the words professional misconduct in
Section 35 of the Advocates Act. The facts of the case involved an advocate
(appearing as a litigant in the capacity of the respondent, and not an advocate in a
rent control proceeding) assaulted and kicked the complainant and asked him to
refrain from proceeding with the case. The main issue in this case was whether the
act of the advocate amounted to misconduct, the action against which could be
initiated in the Bar Council, even though he was not acting in the capacity of an
advocate. It was upheld by the Supreme Court that a lawyer is obliged to observe
the norms of behavior expected of him, which make him worthy of the confidence
of the community in him as an officer of the Court. Therefore, inspite of the fact
that he was not acting in his capacity as an advocate, his behavior was unfit for an
advocate, and the Bar Council was justified in proceeding with the disciplinary

12 2004 AIR 2440

15

proceedings

against

him.

It may be noted that in arriving at the decision in the case, the Supreme Court
carried out an over-view of the jurisprudence of the courts in the area of
misconduct of advocates. It reiterated that the term misconduct is incapable of a
precise definition. Broadly speaking, it envisages any instance of breach of
discipline. It means improper behavior, intentional wrongdoing or deliberate
violation of a rule of standard of behavior. The term may also include wrongful
intention, which is not a mere error of judgment. Therefore, misconduct, though
incapable of a precise definition, acquires its connotation from the context, the
delinquency in its performance and its effect on the discipline and the nature of
duty.
In N.G. Dastane v. Shrikant S. Shind 13, where the advocate of one of the parties
was asking for continuous adjournments to the immense inconvenience of the
opposite party, it was held by the Supreme Court that seeking adjournments for
postponing the examination of witnesses who were present without making other
arrangements for examining such witnesses is a dereliction of the duty that an
advocate

owed

to

the

Court,

amounting

to

misconduct.

Ultimately, as it has been upheld and reiterated that misconduct would cover any
activity or conduct which his professional brethren of good repute and competency
would reasonably regard as disgraceful or dishonourable. It may be noted that the
scope of misconduct is not restricted by technical interpretations of rules of

13 AIR 2001 SC 2028

16

conduct. This was proven conclusively in the case of Bar Council of Maharashtra
v. M.V. Dahbolkar14 .The facts under consideration involved advocates positioning
themselves at the entrance to the Magistrates courts and rushing towards potential
litigants, often leading to an ugly scrimmage to snatch briefs and undercutting of
fees. The Disciplinary Committee of the state Bar Council found such behavior to
amount to professional misconduct, but on appeal to the Bar Council of India, it
was the Bar Council of India absolved them of all charges of professional
misconduct on the ground that the conduct did not contravene Rule 36 of the
Standards of Professional Conduct and Etiquette as the rule required solicitation of
work from a particular person with respect to a particular case, and this case did
not meet all the necessary criteria, and such method of solicitation could not
amount to misconduct. This approach of the Bar council of India was heavily
reprimanded by the Supreme Court. It was held that restrictive interpretation of the
relevant rule by splitting up the text does not imply that the conduct of the
advocates was warranted or justified. The standard of conduct of advocates flows
from the broad cannons of ethics and high tome of behavior. It was held that
professional ethics cannot be contained in a Bar Council rule nor in traditional
cant in the books but in new canons of conscience which will command the
member of the calling of justice to obey rules or morality and utility. Misconduct
of advocates should thus be understood in a context-specific, dynamic sense, which
captures the role of the advocate in the society at large.

14 AIR 1976 SC242

17

Procedure Followed on the Notice of Professional Misconduct

The following is the procedure followed15
(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 Rules made under the authority of
Section 60 of the Act. 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

15 www.legalservicesindia.com/.../professional-misconduct-of-lawyers-in-india-1665-1
18

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.

Conclusion
From the analysis of various cases and certain facts and circumstances, it will be
clear that unlike any other profession, advocacy is regarded as a noble profession
and professional ethics must be maintained. Courts have dealt with various cases of
professional misconduct wherein attempt of murder by the advocate towards his
client have also been reported. Hence, there must be interference from concerned
authorities so that persons with a criminal background are kept away from this
profession. Even though there are guidelines dealing with the social background of
the person enrolling in this profession, i.e. the person enrolling must be free from
any criminal cases, it does not prove that the person has a criminal nature of his
own. So Bar Council can implement certain rules and regulation so that the
conduct of the person who is showing criminal behaviour can be controlled strict
guidelines ensuring that the person no longer acts unlawfully against his
profession. There must be various career guidance and development programs
conducted by the Bar Council immediately after enrolment so that new legal
professionals they will be aware of the dos and dont of this profession and there
will be a better group of advocates in the coming decades.
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
19

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.

Bibliography
20

Articles, Websites, Reports and others:

http://www.legalserviceindia.com/articles/lprof.htm
www.legalmarketing.it
Abhibav Kumar, Lawyers must be allowed

to

advertise,

at http://news.indlaw.com/guest/columns/default.asp?abhinav
David L. Hudson, Bates participants reflect on landmark case,
at http://www.firstamendmentcenter.org/analysis.aspx?id=14394
http:// en.wikipedia.org/Legal_Advertising
Singh Lalithakumar I., A View on Legal Profession, AIR 2006 (Jour.) 1.
Statement of Objects and Reasons, The Advocates Act, 1961.
Dictionaries:
1) H. Black, Blacks Law Dictionary (5th ed., St Paul: West Publishing Co., 1979)
1059.
2) The Concise Oxford Thesaurus compiled by Kirkpatrick Betty; Oxford
University Press.
3) Websters New English Dictionary; Black Dog & Leventhal Publishers Inc, 2nd
Edn 1995.

21