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Report No. 266

Chapter -XV

Need for Defining Misconduct

15.1. The question of creating a conducive environment for the effective regulation of the profession requires a statutory framework. This statute provides for the regulator's powers in many subtle ways. The specificity of the words employed in the statute is one such subtle way in which powers and duties are framed. Neither the Advocates Act nor the Bar Council of India Rules, defines professional misconduct. However, the Apex Court has elucidated on the concept of "misconduct".

15.2 Misconduct means a wrongful action and not mere error of judgment. A transgression of some well-established and definite rule of action, where no discretion is left. It is a forbidden act, carelessness, an unlawful behaviour or neglect by which the right of a party has been affected e.g. allegation of disproportionate asset; misappropriation; and criminal breach of trust; not working diligently; an action which is detrimental to the prestige of the institution and acting beyond authority. It may be synonymous to an improper behaviour or mismanagement. It is detrimental to public interest. Misconduct is to be construed and understood with reference to the subject matter and context wherein the term occurs taking into consideration the scope and object of the statute involved.51

15.3 Professional misconduct refers to disgraceful or dishonourable conduct, not befitting to the profession concerned. Legal profession is not a trade or business. Therefore, it must remain a de-contaminated profession. Advocates have a duty to uphold the integrity of the profession and to discourage corruption so that justice may be secured by the citizenry in a legal manner.52 A lawyer must strictly adhere to the norms of profession which make him worthy as an officer of court53. Dignity of the judiciary is to be maintained, failing which the institution itself will collapse.54

Indulging in practices of corrupting the judiciary or offering bribe to the Judge55; retaining money deposited with the advocate for the decree holder even after execution proceedings56; scandalizing the Judges57; constant abstention from the conducting of cases; misappropriation of the amount paid58; attesting forged affidavit59; failure to attend trial after accepting the brief60; taking money from client in the name of the Judge61; gross negligence involving moral turpitude62; indecent cross-examination63; breach of trust64; conducting fraud and forgery65 by the advocates, have been held to be serious misconduct by the Supreme Court.

15.4 In light of the above decisions, the Law Commission considered and provided the definition of "Professional Misconduct" in the Amendment Bill recommended by it.

Advocates Act, 1961 - Regulation of Legal Profession Back

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