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Conduct Of Advocates And Punishments Of Advocates

This article focuses on the chapter V of the Advocates Act, 1961 which portrays the conduct of advocates in which the section ranges from Section 35 to Section 44, inclusive of:
  • Punishment of advocates for misconduct
  • Disciplinary powers of Bar Council of India
  • Changes in constitution of disciplinary committees
  • Disposal of disciplinary proceedings
  • Appeal to the Bar Council of India
  • Appeal to the Supreme Court
  • Applications of sections 5 and 12 of the Limitation Act, 1963
  • Stay of order
  • Alteration in roll of advocates
  • Powers of disciplinary committee
  • Powers of Bar Council of India and other committees
  • Cost of proceedings before a disciplinary committees
  • Review of orders by disciplinary committee
In addition to these, this article will be containing certain case laws with a brief analysis on conduct or misconduct of advocates.

Misconduct is defined as violating a set of established rules of behavior, such as engaging in prohibited activities or acting improperly or wrongfully. Although the terms "misconduct" and "professional misconduct" are not defined in section 35 or any other part of the Advocate Act of 1961, it is stated in the act that advocates may also face consequences for professional misconduct or other misconduct.

In section 10 of the Bar Council Act of 1926, the phrase "professional or other misconduct" is mentioned. It makes it clear that authorities may take appropriate action. in every instance of misconduct, whether it be in a work-related or personal capacity.

Re Vinay Chandra Mishra v/s Unknown [1995]
In this instance, the court decided that, should any contempt jurisdiction be found, the advocate's license could be revoked by the high court or the supreme court. Professional misconduct arises as a result of various dereliction of duties towards:
  • The court
  • The client
  • The opponent
  • The colleagues
Principles For Determining Misconduct
Any actions that are illegal even though they are not intrinsically wrong are considered misconduct. The Legal Practitioners Act of 1879 came before the Advocates Act of 1961. While the term "unprofessional conduct" is used in the Act, the term "misconduct" is not defined. Some of the instances of professional misconduct are as follows:

Overview Of Section 35 Of 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: If someone is found guilty of professional misconduct, the case will be referred to a disciplinary committee, a hearing date will be set, and the State's Advocate and Advocate General will be given notice to show cause. The disciplinary committee of the State Bar Council, after hearing both the parties may proceed with:
  • 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.

Section 36 Of Advocates Act, 1961 - The Disciplinary Committee Of The Bar Council Of India And Its Powers
Only misbehavior cases that the state bar council takes up are covered by Section 35. On the other hand, section 36 specifies another class of cases. This section clarifies situations where the accused advocate's name is not listed on any state roll. Section 36 will be subject to the same procedure as section 35.

The state bar council must have grounds to suspect an advocate of misconduct under section 35 and refer the case to a disciplinary committee; the bar council of India must have grounds to believe the same under section 36. That is the only distinction. Suo Motu compliance is possible in both situations.

Section 35 of the law grants the State Bar Council the authority to transfer a pending case from one disciplinary committee to another, thus creating yet another distinction between the two. Section 36, however, gives the Indian Bar Council the authority to dismiss any disciplinary investigation that is still pending before the state bar Council's disciplinary committee and handle it independently.

Notifying the Advocate General of India is discussed in section 35(2), and the Attorney General of India is covered by the same provision under section 36. The state bar's authority to issue orders will also continue to apply to the bar council. In addition, the disciplinary committee of the Indian Bar Council is authorized by section 44 of the act to examine any order either independently or in response to a request for review. Nevertheless, the Bar Council of India itself must grant the committee permission to use this authority.4

Section 36a Of The Advocates Act, 1961

Section 36A of the Advocates Act of 1961 states that when the state bar council and the bar council of India exercise their powers to either withdraw and assign another disciplinary committee or when a committee is succeeded by a new committee, that committee need not start the proceeding from the beginning and can continue from where it left off. This procedure outlines the steps that the state bar council and the bar council of India must take.

According to Section 36B(1), the disciplinary committee is tasked with concluding the case and issuing an order within a year of the date the case was received or the proceedings started, if the state bar council receives a complaint against an advocate for misconduct. The proceedings under the provisions of this section will pass to the Bar Council of India and be treated as transferred proceedings under clause 2 of section 36 of the Advocates Act, 1961, if the disciplinary committee is unable to resolve the case within the allotted time.5

CASE: Suresh Shiva Rao v. N.D. Upadhyaya through secretary, bar council of Maharashtra (1998)
On June 27, 1998, the Bar Council of India's disciplinary committee issued an order against Suresh Shiva Rao for misconduct in this matter. Following the start of the proceedings, the disciplinary committee started looking into the case and interviewing witnesses and reviewing documents. Following the examination, the committee found Suresh guilty based on all the evidence presented, and as a result of his misconduct, his license was revoked for two years. But because Suresh didn't agree with the court's decision, he filed an appeal using the legal authority granted to him by Indian legislation. Subsequently, an order of stay was imposed based on this committee order.

However, Suresh's license was revoked in accordance with the prior order that had placed the stay in place, and he was still able to practice law by working for a firm called m/s Vulcan level ltd. His employment arrangement was full-time. In addition to working for the corporation, he was a practicing lawyer in Goa and Maharashtra. According to the rules, the person who was accused of wrongdoing ought to have informed the court about the company and the job offer, but he chose not to do so.

Shri N.D. Upadhyaya, as a result filed a complaint with the bar council of the state in which he was practicing, the Bar Council of Maharashtra. However, based on an interpretation of section 36-B, the Bar Council of India was unable to take any action because the proceedings had gone beyond the one-year time limit that was stipulated. The case was forwarded to the Bar Council of India after the expiration term.6

Relation Between The Advocates Act, 1961 And The Limitations Act, 1963

Section 37 and 38 of the Advocates Act, 1961
Under all of its statutes, the Indian legal system examines each case to create laws that expedite the administration of justice and eliminate even the remotest possibility of injustice. The appeals system is one such manner that the judiciary advances justice. Additionally, section 37 of the Advocates Act lays out this requirement. One of the most important rights granted to citizens of a nation is the opportunity to appeal, which raises the legal system's accountability to the people.

Additionally, it leaves up the possibility of reconciliation in the event that the party punished is dissatisfied with the court's ruling and requests that a higher court step in and reconsider the matter after taking into account all relevant circumstances. The same thing is outlined in Section 37 of the Advocates Act, 1961, which says that an advocate may appeal a decision made by the Advocate General of the state or the state bar council's disciplinary committee to the Bar Council of India.

To use this power, one must, however, file an appeal with the state bar council's disciplinary committee no later than sixty days after the order was passed. Following an appeal to the Bar Council of India, the council is required to consider the case and provide an order that best suits its needs; also, the state bar council's decision may be overturned.

After reading section 37, the most crucial question is: What measures will be in effect if an advocate is not persuaded by the disciplinary committee of the Bar Council of India's order? In order to enhance accountability and fairness for the public, section 37 of the Advocates Act, 1961 allows advocates to file an appeal with the Indian Supreme Court if they feel they have been wronged by an order made by the Bar Council of India's disciplinary council in accordance with sections 36 and 37. The window of opportunity to file an appeal is the same as that specified in section 37: six months from the day the parties received notice of the Bar Council of India's order.7

Section 5 and 12 of the limitations Act, 1963
The Indian legal system's numerous sections under several statutes make it clear that the judiciary is not overly strict and offers the right amount of freedom when it is required. The 5th Section of the Limitations Act of 1963 is one such instance. A court of law never completely excludes the possibility of legitimate reasons why the filing or start of proceedings might be delayed.

Thus, this clause stipulates that the statute of limitations set forth in the acts may be extended if any of the parties to the case had legitimate grounds for not filing an application or filing an appeal within the allotted time and the court might find merit in such reasons. But it also states that this part will not apply if the cases fall under the category of decree execution once it has reached its final judgement and there are no pending stay orders (order 21, CPC, 1908).

Similar provisions that aid in the interpretation of numerous statutes are outlined in section 12 of the Limitations Act. For instance, it calculates the statute of limitations for an appeal and clarifies that the period of time between the judgment's announcement and the court's receipt of the official decree that is the subject of the appeal, as well as the time the court takes to interpret it, are not included in the statute of limitations.8

Relevance between the two statutes, 1961 and 1962: Section 39 of the Advocates Act stipulates that the provisions outlined in Sections 37 and 38 of the Limitations Act shall apply in situations of appeal.

Order Of Stay
A stay order puts an end to legal proceedings temporarily. The only way to impose such a stay is through a formal court order. However, section 40 of the advocates act 1961 states that even if an appeal is filed, the prior order issued by the Supreme Court or the Bar Council of India remains in effect. This information should be read in conjunction with the appeal provisions mentioned under sections 37 and 38 of the advocates act 1961.

Even if the application for a stay is submitted before the allotted time has expired, the Supreme Court or the Bar Council of India's disciplinary body shall independently provide a stay on their prior order until a fresh order is given or the former one is lifted.9

Powers Of The Disciplinary Committee
Misconduct by an advocate can only be dealt with by the disciplinary committee. In addition to the appeal options listed in different sections of chapter 5, the disciplinary committee has some powers that are only available to it.

A disciplinary committee will have the same rights under section 42A of the act as those granted to a civil court under the Code of Civil procedure. This includes the Bar Council of India.

These Powers Are As Follows:
  • The committee can summon any person it sees as directly or indirectly connected to the case or for any such reasons as it deems fit for examination and it can also issue commissions for the purpose of such examinations of documents or witnesses.
  • The committee has the power to command for production of relevant documents before it.
  • It has the power to receive evidence on affidavits.
  • It has the power to demand for any public record from any court to dispose of the case.
There are, however, two situations in which a disciplinary committee lacks the authority to require someone to appear before it. Initially, the committee needs to obtain advance permission from the high court in order to have any court presiding official present. The committee will not be comforted by that officer's appearance. Second, the committee may only call a tax officer to testify in court if it obtains official state government authorization or sanction to do so in any case of misbehaviour.

Cases That Covers The Chapter V Of The Advocates Act, 1961
NG Dastane v/s Srikant S. Shivde Air 2001 SC 2018
This court decision is historic because it examined section 35 of the Advocates Act of 1961 and found that, although it is a procedural requirement, the word "reason to believe" is superfluous and may even operate as a roadblock to the start of the proceedings. Furthermore, this sentence is against Bar Council of India Chapter II Rule 11.

The bench of judges included Honorable justice KT Thomas, honorable justice R.P. Sethi and honorable Justice S.N. Phukan.

Appellant- Advocate P.H. Parekh and advocate Amit Dhingra
Respondents- Advocate Shakil Ahmed Syed and senior advocate Vijay S. Kotwal

The case concerns the defendants' deliberate repeated demands for adjournments in order to cross-examine a witness. The witness experienced inconvenience from the frequent adjournments since he lost a lot of time in court and had to travel whenever he needed to be questioned at his own expense. It was also discovered that the two counsel kept delaying the cross-examination in an attempt to drag out the proceedings.

The witness, who had suffered, chose to file a complaint about the advocates' misconduct. He then went to the State Bar Council, which denied his complaint under the guise that there wasn't enough evidence to prove the attorneys' wrongdoing. The same thing occurred when he submitted a review mechanism to the Indian Bar Council. After that, he filed a case with the highest court in an effort to get justice.

During the case, the appellant, an agricultural scientist employed by United Nations organisations, was retired. He had brought legal action against an individual for the offence of electricity theft. The accused's two lawyers, Shri Shivde and Kulkarni, were fighting together in the court of law on his behalf. The appellant was examined in chief once the case had properly started in 1993.

The appellant's actual issue arose when he began to experience inconvenience as a result of the advocates. On July 30, 1993, he was summoned from New York for cross-examination. However, when he arrived, the two advocates decided to postpone the cross-examination, citing the fact that not all of the witnesses on the list were in the courtroom and that the examination could only take place once everyone was present.11

The date of cross examination was shifted to 23.08.1993.

On August 23, 1993, however, the two lawyers both agreed to postpone the cross-examination, citing as further justifications that one of them had unfinished business outside of court and the other had to depart due to the death of his friend's father. Once more, the magistrate decided to move up the cross-examination date. The attorneys continued their prior practice of delaying the cross-examination date, and the new date was scheduled on September 13, 1993.

On this occasion, though, the opposing party objected to the postponement, and the magistrate once more set a new date of 16.10.1993. However, under the guise of one of the advocates being out of town, the date was again moved to November 20, 1993, after which the magistrate set a new date of 4.12. 1992.

The two advocates filed a written statement with the court on the scheduled date, stating that one of them was seriously ill with a throat infection and was unable to continue with the cross- examination because his doctor had instructed him to take a total break for at least two weeks. Nonetheless, the displeased witness chose to file a complaint against the advocates when he discovered the same advocate�who, based on the written statement, had a throat infection� argumenting in a different courtroom on the same day.

The court found the two advocates guilty of misconduct under section 35 of the Advocates Act, 1961. It further declared that, should a witness appear in court for cross-examination, the examination must be conducted on that same day and cannot be postponed without good cause. This is because, as stated in section 35 of the Advocates Act, 1961, the phrase "reason to believe" cannot be used as a stop sign or barrier against infamous or frivolous activities.12

Informing About Bribe:
This concept is clearly portrayed in the case of Shambhu Ram Yadav v. Hanuman Das Khatry, The Bar Council of India issued an order on July 31, 1999, which was upheld by the Court. The order stated that the appellant had been practicing law for 50 years and was not expected to engage in corrupting the legal system or bribing judges. He acknowledged that he had demanded Rs. 10,000 from his client and that an order had been passed in his client's favour. This alone renders him completely ineligible to practise law, having written the aforementioned letter.

There is no less severe penalty we can administer than permanently excluding him from the practice.The Rajasthan Bar Council's roster of advocates must to be updated to remove his name. The appellant will thereafter have no further right to appear before a tribunal, court of law, or other body. The appellant is ordered to pay a fee of Rs. 5,000/-to the Bar Council of India within two months, as per the court's order.13

The Advocate Acts provide the legal foundation for solicitors as well as instructions for creating an All-India Bar and Bar Councils. In essence, the Act specifies the requirements for becoming a member of state-level bar councils and the qualifications one needs to meet in order to practise law. The highest authority that establishes registration rules and regulations is the Bar Council of India. It also outlines the standards that a legal organisation must maintain.

As a court official, the advocate is also accountable for providing high-caliber services. Incomplete and inaccurate pleadings, often rendered unintelligible without personal verification, nonpayment of court and process fees, neglecting to remove office objections, failing to take action to serve the parties, and lapses in service when the matters are called out are not just instances of professional omission.

They constitute a positive detriment to the parties involved, generate awkward circumstances in the courtroom that prevent unnecessary discomfort and postpone the resolution of cases, and have a negative impact on the legal system as a whole.

In addition, lawyers must preserve the honour of the judicial office and treat the Court with respect in their capacity as court officers. This is due to the fact that the Bar and the Bench constitute a noble and vibrant partnership focused on the important social objective of administering justice, and that preserving friendly ties between the two depends on the Bar and the Bench's mutual respect. An advocate has a responsibility to preserve the honour and decorum of the Court, refrain from taking any action that could damage the Court's reputation, and make sure that he never crosses the line into inappropriate behaviour.

  • Misconduct - available at :
  • Principles of misconduct - available at:
  • Section 35 of the Advocates Act, 1961 - available at :
  • Section 36 of the Advocates Act, 1961 - available at :
  • Section 36A of the Advocates Act, 1961 - available at :
  • Suresh Shiva Rao v.N.D. Upadhyaya through secretary, bar council of Maharashtra (1998)
  • Section 37 and 38 of the Advocates Act - available at :
  • Section 5 and 12 of the Limitation Act, 1963 - available at :
  • Order of Stay - available at :
  • Powers of the Disciplinary Committee - available at :
  • NG Dastane v/s Srikant S. Shivde Air 2001 SC 2018
  • Case summary of NG Dastane v/s Srikant S. Shivde Air 2001 SC 2018 - available at :

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