A respectable and honourable career is advocacy is a dream for all aspirants. However, an advocate must comply strictly with professional ethics or he may be responsible for professional misconduct. The word ‘Professional Misconduct’ implies unethical actions. It implies, in the legal sense, an act intentionally committed by the people involved in the profession with the wrong intention. For his selfish ends, it implies any action or actions of an advocate in breach of professional ethics. It leads to ‘professional misconduct’ if an act results in a conflict with his profession and renders him ineligible to be in the profession. In other words, an act that disqualifies an advocate from continuing in the field of law. It includes:
1. In betraying a client’s trust
2. In attempting to practise fraud by means 3. To trick the court or the opposing party or his counsel
WHAT AMOUNTS TO SUCH MISCONDUCT?
Misconduct of an Advocate may be explained with reference to the following factors –
1. Dereliction of Duty
Dereliction of duty implies giving briefs to another lawyer; such move is deemed unprofessional, however if he does so with his client’s permission, it is not inappropriate.
2. Professional Neglect
It is expected that a defender would exercise sound ability and prudence and should not be negligent.
When an advocate collects money from his clients for court purposes and misuses it is called as misappropriation which amounts to professional misconduct.
4. Contempt of Court and Improper behaviour before Magistrate
An advocate must respect the court and maintain the dignity. Making of false allegations against the judicial officers amounts to gross misconduct.
5. Furnishing false information
Furnishing false information amounts to ‘professional misconduct’.
6. Appearing for both the sides
An advocate is under a duty to do his best to protect the interest of his clients. He must not represent conflicting interest.
7. Giving Improper Advice
Advocacy being a noble profession, an advocate must give his clients the benefit of his learning, talent and judgment. An advocate must give his proper advice if he is unable to take up the brief, he should advice the client to consult another counsel but should not give improper advice. Improper advice amounts to misconduct.
REASONS OF SUCH MISCONDUCT
1. Failure to maintain currency of professional knowledge and competence.
2. Failure to seek assistance or make appropriate referrals.
3. Difficulty in a professional’s personal life affects their work life.
4. Alcohol and Drug Addictions.
5. Lack of proper Communication, or other language/communication barriers
6. Failure to appropriately address patient concerns.
7. Environmental Factors such as excessive work demands, lack of mentoring and supervision, inappropriate work place practices my lead to misconduct.
8. Personality Conflicts Escalate to Unprofessional Conduct.
9. Complacency about professional standards.
10. Professional Documentation, when done unethically with improper data, forged signatures etc.
1. The Supreme Court ruled, in State of Punjab v. Ram Singh, that the word ‘misconduct’ can include• moral turpitude• improper or wrongful behaviour• unlawful behaviour• wilful in character• a forbidden act• transgression• carelessness or negligence in performance of duty• or the act complained of bears forbidden quality or character
2. The Supreme Court made it clear in Shambhu Ram Yadav v. Hanuman Das Khatri that a serious offence is to write a letter to his client to give money to bribe the Judge. It also held that no trade or business is a legal occupation.
3. Case: Emperor v. K.C.B
In this case certain tins of ghee were seized by Municipal authorities on being adulterated and kept under the custody of a Marwari. The advocate falsely told the Marwari that the Sub-Divisional Office had ordered that the tins to be handed over the owner. The advocate was held guilty of misconduct.
4. Case: V.C Durai Ranga v. D Gopalan
In this case, the Supreme Court ruled that a lawyer entrusted with a brief must meet professional ethics guidelines and must safeguard the interests of his clients.
5. Case: Mohd. Ismail v. Balarathna
It was concluded that if a lawyer failed to have necessary requisite documentation or material paper during repeated adjournments, it leads to misconduct.
6. Case: L.C Goyal v. Suresh Joshi
In this case the advocate misappropriated the money received as court-fee. He was held guilty of professional misconduct.
Provisions in Advocates act 1961
The Advocates Act 1961 is a comprehensive statute that governs India’s legal profession and legal education. It envisages the creation of separate disciplinary boards for the Bar Council of India and the State Bar Councils to deal with the wrongdoing of advocates. It also sets down rules pertaining to the admission and registration of the freedom to practise for advocates and advocates. Chapter V, covering sections 35 to 44, deals with the lawyers’ actions. It provides for the punishment of the Bar Council of India’s advocates for technical and other wrongdoing and judicial powers. The wrongdoing would not appear to be professional misconduct alone to warrant the enforcement of section 35 of the advocates’ act. Professional or other wrongdoing is the term used in the section.
Thus, the actions contrary to the practise will account for a violation, such as conviction for a felony, if the felony was not committed in a professional capacity. About the same time as a simple prosecution is not necessary to hold a lawyer guilty of wrongdoing, the court must investigate the essence of the act on which the prosecution is based in order to determine whether or not the lawyer is an unfit person to be dismissed from the practise or to be permitted to continue in the practise. Misconduct is of infinite variety, it is important to recognise the expression of professional or other misconduct in its simple and normal sense, and there is no excuse for limiting its natural meaning. The word misconduct typically means an act carried out deliberately with a wrong motive which entails unprofessional actions as applicable to professional persons, even if such actions are not intrinsically unlawful.
Legal Profession plays a great role in the society. he/she is an epochal in its nature as they assist the process of achieving justice. These professionals have an ethical code of conduct to follow. A lawyer while performing his professional liabilities has a duty towards his client, his opponent, the court, the society and a duty towards himself.
It requires a high degree of dedication and willpower to strike a balance so as to perform his task as suggested by the act, more so, the Bar Council of India plays a vital role in enacting pandect. It must regularly monitor and accordingly bring about amendments in professional ethics with changing the aura of the society.
It is an utmost important duty for an advocate to uphold the dignity and decorum of the Court. He/she must not do anything to bring the Court into disrepute, and ensure that at no point, he himself as well as others around him should not oversteps the limits of propriety given to them.
Professionalism is not about perfectionism, everyone makesmistakes. However, it is necessary to ensure that we learn from our mistakes. By being alert to some of the root causes of unprofessional conduct we can do our very best in ensuring that we act as “true professionals”. This can be achieved by following the below mentioned points:
1. Know and be aware of your professional environment
2. Communicate with your clients, colleagues and superiors profoundly
3. Take detailed notes to avoid improper documentation etc
4. Understand the risks and act accordingly
5. Make an effort to work effectively and efficiently
6. Stay away from unethical and illegal practices