INTRODUCTION:

THE ADVOCATES ACT, 1961

The Indian Advocates Act, 1961 was brought into force to implement all recommendations
made by the All India Bar Committee. This act aims at amending and forming laws related to
the legal practitioners and to provide for the establishment of the State Bar Council and the
All India Bar Council.
This act made a provision to set up the Bar Council of India as an autonomous body, which
would be given powers to carry out and discharge certain duties and perform certain
functions. According to this act, an Advocate is defined as “An advocate who has entered
any roll under the Advocate’s Act, 1961”. Earlier, according to the Legal Practitioners Act,
lawyers were classified as advocates, lawyers, vakil etc. but this act scrapped these titles off
and put everyone under the single title of advocate. They are then also classified as “Senior
Advocates” and “other advocates” on their merit.

The main features of this act are as follows-

1. This act enabled the establishment of the Bar council of India and State Bar Councils.
2. Any advocate cannot enroll himself/ herself in more than one State Council, though
he can be transferred from one state council to another.
3. The Bar council was given an autonomous stature.
4. It provided for the provisions for similar roll of Advocates throughout the country.
5. It also provided to combine all the laws of the legal system into one.
6. There were various provisions set up for the Bar Council at state and central level.
7. As stated earlier, the different titles like lawyer, vakil was scrapped off and a single
title of Advocate was applied.

In 1961, parliament enacted the Advocates Act to amend in consolidated the law
relating to the legal practitioner, and to provide for the constitution for the State Bar
Council and All India Bar Council. The Advocates Act implements the recommendation
of the Bar Committee in the Law Commission with some modifications. It repeals the
Indian Bar Council Act, 1926, the Legal Practitioners Act, 1879, in other laws under
subject. The act has undergone several amendments since its enactment in 1961. The
Act extends to the whole of India.
 THE BAR COUNCIL OF INDIA

The Act establishes an All India Bar Council for the first time. The Attorney General of
India in the Solicitor General of India is the ex-officio members of the Bar Council of
India. Besides, it has one member elected by its State Bar Council from among its
members. The Council elects its own chairman and vice-chairman. The Bar Council of
India has been entrusted inter alia with the following important functions:

(1) To lay down standards of professional conduct and etiquette for advocates.

(2) To safeguard the rights, privileges and interest of advocates

(3) To promote legal education

(4) To lay down standards of legal educati0on in consulta tion with the universities
imparting such educations in the State Bar Councils.

(5) To recognize universities which degrees in law shall qualify for enrolment as an
advocate and up to visit and inspect the universities for that purpose.

6) To exercise general supervision and control over state bar councils.

(7) To promote and support law reform

(8) To organize legal aid to the poor.

 STATE BAR COUNCILS

The Act creates a State Bar Council in each state. It is an autonomous body. The
Advocate General of the state is an ex-officio member, and there are 15 to 25 elected
advocates. These members are to be elected for a period of five years in accordance
with the system of proportionate representation by means of single transferable votes
from amongst advocates on the roll of the State Bar Council. The State Bar Council has
the power to elect is own chairman. The main powers and functions of the State Bar
Council are:

(a) To admit persons as advocates on its roll

(b) To prepare and maintain such rolls.

(c) To entertain and determine cases of misconduct against advocates on its roll

(d) To safeguard the right, privileges and interest of advocates on its roll

(e) To promote and support law reform

(f) To organize legal aid to the poor

Thus, every State Bar Councils prepares and maintains a roll of the advocate as an
authenticated copy of the roll which is to be sent to the Bar Council of India.

Advocates have been classified into Senior Advocates and other Advocates. An
Advocate may, with his consent, be designated as a Senior Advocate if the Supreme
Court or a High Court is of opinion that by virtue of his ability, experience and his
standing at Bar he is deserving of such distinction. Senior Advocates are, in the matter
of their practice, subject to such restrictions as the Bar Council of India may, in the
interest of the legal profession prescribed .

Originally, the Act had saved the dual system i.e. Advocates and Attorneys, prevailing in
the Bombay and Calcutta High Courts on their Original Side. It was left to the two High
Courts to continue the system or not. These provisions were deleted with effect from
1st January 1977. The result is that, as a matter of law, Attorneys are no longer
recognized as a separate class of lawyers. However, since the system prevailed for a
long period in the two towns it continues there still as a matter of practice .

Thus, admission, practice, ethics, privileges, regulation, discipline and improvement of

the profession are now all in the hands of the hands of the profession itself. The legal
profession has achieved its long-cherished object of having a unified Bar on All-India
basis.3

INTERPRETATION OF THE WORD ‘PROFESSIONAL MISCONDUCT’

The word ‘professional misconduct’ is nowhere defined in the Advocates Act, and it is
not possible to come up with a standard definition of it. This makes precedents in this
particular matter the only reliable source of understanding the meaning of professional
misconduct.

In the case of State of Punjab v/s Ram Singh Ex. Constable[1], the Supreme Court
had observed that, Misconduct in office may be defined as unlawful behaviour or
neglect by a public officer, by which the rights of a party have been affected. Further
the court had observed that professional misconduct may involve –

 Moral Turpitude
 improper or wrongful behavior
 unlawful behavior
 willful in character
 a forbidden act
 transgression
 carelessness or negligence in the performance of duty
 or the act complained of bears forbidden quality or character
Moral turpitude is an act or behaviour that gravely violates the sentiments or accepted
standards of the community. Section 24A of the Advocates Act, 1961, states that no
person shall be admitted as an advocate on a State roll if he is convicted of an offence
involving moral turpitude. Further, if such moral turpitude is committed by a person
who is already enrolled as an advocate, then the Bar Council and its disciplinary
committee can take up the matter and impose suitable punishments.

As stated by Justice K. Ramaswamy, in the above-mentioned case, it can be said that

any improper or wrongful behaviour which is unlawful in nature and is done deliberately
by a professional person, can be considered as professional misconduct. Further,
performing any forbidden act or a transgression of established and definite rule of
action or code of conduct may lead to professional misconduct.

CASE:

Bar Council Of Andhra Pradesh vs Kurapati Satyanarayana on 15

November, 2002

FACT:

Bar Council of Andhra Pradesh, for short "the State Bar Council", has filed this appeal
against the order of the Disciplinary Committee of the Bar Council of India in D.C. Appeal
No. 39 of 1997 dated 28th March, 1999 by which the Bar Council of India has set aside the
order passed by the State Council removing the name of Kurapati Satyanarayana, hereinafter
referred to "the Delinquent", from the roll of the State Bar Council as he was found guilty of
grave professional misconduct in the discharge of his duties as an advocate.

O.S. No. 1624 of 1991 was filed by Sri Gutta Nagabhushanam, hereinafter referred to "the
de-facto complainant", on the file of the Additional District Munsif Magistrate, West
Godavari District, Eluru through the delinquent advocate. The said suit having been decreed,
Execution Petition No. 112 of 1995 was instituted for realisation of the decretal amount.
Delinquent was engaged as the counsel for the de-facto complainant in the execution
proceedings as well. The Delinquent received a total sum of Rs. 14,600/- on various dates in
the execution proceedings but did not make payment of the same to the de-facto
complainant.

Issue:
Whether he is liable for professional misconduct?

Judgment:

The judgment is delivered on 15/11/2002

By a BENCH Consisting Of:
V. N. Khare & Ashok Bhan

The Disciplinary Committee of the Bar Council of India held that there was no intention on
the part of the Delinquent advocate to misappropriate the money of his client or to de-fraud
him. The Supreme Court held this decision of BCI to be unfounded and perverse and lacking
the serious thought which was required to be given by the Disciplinary Committee of the Bar
Council of India in the discharge of quasi-judicial function while probing into the grave
charge of professional misconduct by an advocate in the discharge of his duties as a counsel.

The Supreme Court held that the Delinquent is guilty of grave professional misconduct.
Having given anxious consideration, it is felt that having regard to the serious nature of
misconduct the punishment of removal of his name from the roll of Bar Council would be the
only appropriate punishment and accordingly The Supreme Court set aside the order passed
by the Disciplinary Committee of the Bar Council of India and restore that of the
Disciplinary Committee of the State Bar Council. Appeal is allowed.

Accordingly, The Supreme Court direct the removal of his name from the roll of the Bar
Council. The appellant shall be entitled to the costs of this appeal, which we assess as Rs.
5,000/-.

Analysis:
Here the Delinquent received a total sum of Rs. 14,600/- on various dates in the execution
proceedings but did not make payment of the same to the de-facto complainant. On 18th October,
1996 the de-facto complainant filed a complaint with the Additional District Munsif, Eluru. On the
said complaint Additional District Munsif, Eluru passed the following orders:

"Decree Holder present. Sri K. Satyanarayana absent perused the entire record. The memo filed by
D.H.R. along with original receipt issued by Sri K.

Satyanarayana, Advocate, Dt. 2.4.1996 and the photostat copy of calculation memo dt. 16.8.1996
prepared by Sri K. Satyanarayana, Advocate, which is not signed by D.Hr. and along with this
complaint and counter be submitted to the Secretary, Bar Council of A.P. in High Court premises,
through the Hon'ble District and Sessions Judge, West Godavari, Eluru for taking necessary action
with covering letter, D. Hr. is informed in open Court."

The complaint filed by the de-facto complainant along with the reply filed by the Delinquent and the
connected documents were forwarded to the Bar Council of the Andhra Pradesh in the High Court
premises for appropriate action. The State Bar Council took notice of the complaint filed and issued a
notice to the Delinquent. The Delinquent in spite of the service of notice did not choose to file a
counter. The State Bar Council referred the matter to its Disciplinary Committee. The State
Disciplinary Committee after examining the witnesses produced by the complainant came to the
conclusion that the Delinquent had received a total sum of Rs. 14,600/- belonging and payable to the
de-facto complainant on different dates and retained the same with him.

Assertion of the Delinquent that he had informed the complainant through a post-card about the
receipt of the decretal amount was not accepted. That in spite of an undertaking (Ex.C-1) dated 24th
April, 1996 given in writing by the Delinquent to pay a sum of Rs. 11,000/- to the complainant, the
same was not paid. The story put-forth that he paid a sum of Rs. 11,000/- on 4th September, 1996
was not accepted because the Delinquent failed to produce any receipt given by the complainant
evidencing the payment of the said amount to the complainant. It was noted that only on 19th
August, 1997 a demand draft No. 808327 of Rs. 3,600/- and a demand draft No. 0142169 dated 17th
October, 1997 for Rs. 2,900/- drawn on State Bank of Hyderabad in favour of the complainant were
sent. The Committee directed that the said two drafts be forwarded to the complainant without
prejudice to his any other right, if any. It was specifically mentioned that the payment of the said two
amounts would not obliterate the misconduct of the Delinquent.

The Delinquent preferred an appeal before the Disciplinary Committee of the Bar Council of India.
The Disciplinary Committee of the Bar Council of India agreed with the finding of fact recorded by
the Disciplinary Committee of the State Bar Council that the Delinquent had failed to make the
payment of Rs. 14,600/- received by the Delinquent on behalf of the complainant in the execution
proceedings, but came to the conclusion that the Delinquent had not committed any professional
misconduct though there might have been some negligence on his part which did not involve any
moral turpitude. For coming to this conclusion, the Disciplinary Committee of the Bar Council of
India recorded the following findings: "One thing is very clear from the conduct of the appellant that
no doubt, he had withdrawn the money on behalf of the complainant being his counsel, but he never
refused to return the same to the complainant. It has also come in evidence that the appellant had
made part payment of the total amount before filing of the present complaint by the complainant
before the Disciplinary Committee of Andhra Pradesh. Perusal of the file shows that the appellant
could not make the payment of the remaining amount because of his family circumstances. There
seems to be weight in the arguments of the appellant to the effect that he could not make the payment
of the remaining amount to the complainant as the said amount was utilised by him on his treatment.
This type of events are very common when some body is in trouble. At this stage, we are to see as
what was the intention of the appellant with respect to utilisation of the said amount. We are to see
whether he had the intention of misappropriating the money of his client in order to defraud him or
he was compelled by the circumstances in not returning the said amount as and when demanded by
the complainant. During the course of arguments it was brought to our notice that the appellant had
already returned the total decretal amount with interest to de-facto complainant. He has further
brought to our notice that he was still suffering from serious heart ailment and he has also sought
appointment with a doctor for undergoing surgery in near future. The Committee is of the considered
view that the appellant from the very beginning never wanted to misappropriate the decretal amount
of the de-facto complainant and the lapse on his part to return the same was because of his domestic
circumstances, as explained."

Counsel for the parties have been heard at length. The first point raised before us on behalf of the
Delinquent that the appeal filed by the Bar Council of the Andhra Pradesh would not be maintainable
as not being the "person aggrieved" need not be dilated upon in view of the Seven-Judge Constitution
Bench judgment of this Court in Bar Council of Maharashtra Vs. M.V. Dabholkar & Ors., 1975 (2)
SCC 702. It has been held in the said case that the role of the Bar Council is of dual capacity, one as
the prosecutor through its Executive Committee and the other quasi- judicial performed through its
Disciplinary Committee. Being the prosecutor the State Bar Council would be an "aggrieved person"
and therefore the appeal under Section 38 of the Advocates Act, 1961 would be maintainable on its
behalf.

On merits we find that the order of the Disciplinary Committee of the Bar Council of India is
unsustainable. It is sad that the Disciplinary Committee of the Bar Council of India, which is the
highest body, to monitor the probity of the legal profession in the country chose to trivialize and treat
a very grave professional misconduct on the part of the Delinquent lightly by saying that the
Delinquent did not make the payment to the de-facto complainant as he had utilised the money for
his personal need for treatment and that such like instances do take place when a person is in trouble.
It was neither pleaded nor shown by the Delinquent that he was in dire financial difficulty which
promoted him to utilise the decretal amount for his treatment which was with him in trust. This is an
act of breach of trust. We are firmly of the view that such types of excuses cannot be entertained
being frivolous and unsustainable. Adhernce to the correct professional conduct in the discharge of
one's duties as an advocate is the backbone of legal system. Any laxity while judging the misconduct
which is not bonafide and dishonest would undermine the confidence of the litigant public resulting
in the collapse of legal system. This is an act of grave professional misconduct. This Court in Harish
Chandra Tiwari Vs. Baiju, 2002 (2) SCC 67, held that amongst the various types of misconduct
envisaged for a legal practitioner the misappropriation of the client's money must be regarded as one
of the gravest. It was observed: "Among the different types of misconduct envisaged for a legal
practitioner misappropriation of the client's money must be regarded as one of the gravest. In his
professional capacity the legal practitioner has to collect money from the client towards expenses of
the litigation, or withdraw money from the court payable to the client or take money of the client to
be deposited in court. In all such cases, when the money of the client reaches his hand it is a trust. If a
public servant misappropriates money he is liable to the punished under the present Prevention of
Corruption Act, with imprisonment which shall not be less than one year. He is certain to be
dismissed from service. But if an advocate misappropriates money of the client there is no
justification in de-escalating the gravity of the misdemeanor. Perhaps the dimension of the gravity of
such breach of trust would be mitigated when the misappropriation remained only for a temporary
period. There may be justification to award a lesser punishment in a case where the delinquent
advocate returned the money before commencing the disciplinary proceedings."

The conduct of the Delinquent, who is an elderly gentleman, is reprehensible and is unbecoming of
an advocate. It deeply pains that the Delinquent who claimed to have practised for three decades and
has worked as Government advocate for four years should have been guilty of such serious
misconduct. The finding of the Disciplinary Committee of the Bar Council of India that there was no
intention on the part of the Delinquent advocate to misappropriate the money of his client or to de-
fraud him is not only unfounded and perverse but also lacks the serious thought which was required
to be given by the Disciplinary Committee of the Bar Council of India in the discharge of quasi-
judicial function while probing into the grave charge of professional misconduct by an advocate in
the discharge of his duties as a counsel.

A lawyer’s 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 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:

1. Dismiss the complaint, or where the proceedings were initiated at the instance of
the State Bar Council, directs that proceedings be filed;
2. Reprimand the advocate;
3. Suspend the advocate from practice for such a period as it deems fit;
4. Remove the name of an advocate from the state roll of advocates.

Likewise, under section 36 of the Advocates Act, 1961, the Bar Council of India to has
Disciplinary powers. The disciplinary committee of the Bar Council of India while
disposing of any case under this section shall observe the same procedure as laid down in
section 35. With reference to the Bar Council of India, while giving notice to the
concerned advocate, it shall also be given to the Attorney-General of India, which in the
case of the State Bar Council is the Advocate-General of the State.

Any person, who is aggrieved by an order of the disciplinary committee of a State Bar
Council made under section 35 or by the Advocate-General of the State, May, within sixty
days of the date of the communication of the order to him, appeal to the Bar Council of
India, under section 37. Such appeal shall be heard by the disciplinary committee of the
Bar Council of India. Further, any person who is still aggrieved by an order made by the
disciplinary committee of the Bar Council of India under section 36 or section 37 or the
Attorney-General of India, as the case may be, he may within sixty days of the date on
which the order is communicated to him, prefer an appeal to the Supreme Court and the
Supreme Court may pass such order (including an order varying the punishment awarded
by the disciplinary committee of the Bar Council of India) thereon as it deems fit.

When an advocate collects money from his clients for court purposes and misuses it, it is
called misappropriation which amounts to professional misconduct. L.C Goyal v. Suresh
Joshi [6] is one such case of misappropriation. In this particular case, an advocate
(appellant in this case) misappropriated the money received as court-fee. The appellant
had misappropriated a sum of Rs. 25,491/-, for which the Honourable Supreme Court had
held him guilty of professional misconduct.
 In Harish Chandra Tiwari vs. Baiju - Misappropriation of client’s money is a grave
misconduct to be committed by a legal practitioner, and must be punished
accordingly under the Advocates Act.

In Smt. Siya Bai vs. Sita Ram BCI– The advocate withdrew the decretal amounts
paid and did not make the payment to the client, in violation of Rule 27 of the BCI
Rules on Professional Ethics. The Disciplinary Committee of the Bar Council of India
ordered the advocate to refund the money to the complainant along with the 10%
interest per annum and also ordered suspension of advocate for a period of one year.

Here, the delinquent is ordered to pay rs.11, 000 and the same was not paid. The story put-forth that
he paid a sum of Rs. 11,000/- on 4th September, 1996 was not accepted because the Delinquent
failed to produce any receipt given by the complainant evidencing the payment of the said amount to
the complainant. It was noted that only on 19th August, 1997 Rs. 3,600 and 17th October, 1997 Rs.
2,900/- drawn on State Bank of Hyderabad in favour of the complainant were sent. It was specifically
mentioned that the payment of the said two amounts would not obliterate the misconduct of the
Delinquent. Perusal of the file shows that the appellant could not make the payment of the remaining
amount because of his family circumstances.And the appellant said that he could not make the
payment of the remaining amount to the complainant as the said amount was utilised by him on his
treatment. It was neither pleaded nor shown by the Delinquent that he was in dire financial difficulty
which promoted him to utilise the decretal amount for his treatment which was with him in trust.
This is an act of breach of trust. We are firmly of the view that such types of excuses cannot be
entertained being frivolous and unsustainable.

So, it is held that the Delinquent is guilty of grave professional misconduct and having regard to the
serious nature of misconduct the punishment of removal of his name from the roll of Bar Council
would be the only appropriate punishment and accordingly set aside the order passed by the
Disciplinary Committee of the Bar Council of India and restore that of the Disciplinary Committee of
the State Bar Council. Therefore the Appeal is allowed and direct the removal of his name from the
roll of the Bar Council and the appellant shall be entitled to the costs of this appeal, which is Rs.
5,000/-.

CONCLUSION:
Advocates have a dual responsibility of upholding the interest of their clients fearlessly while
conducting themselves as officers of the court. Accordingly, they are expected to adhere to the
highest standards of probity and honour. An Advocate’s conduct should reflect their privileged
position in the society which derives from the nobility of this profession.

Professional ethics can also be stated as the duties that have to be followed by an advocate
during his profession. These are moral duties and the very basic courtesy which every
person in this field should know. An advocate who does not work with sincerity and does not
follow the rules of conduct is said to have violated the code of ethics of this profession. The
fundamental aim of legal ethics is to maintain honor and dignity of the legal profession to
ensure the spirit of friendly co-operation, honorable and fair dealing of the counsel with his
clients as well as to secure the responsibilities of the lawyers towards the society.

Mr Potter Stewart, an American lawyer and judge, has rightly said that –

”ETHICS IS KNOWING THE DIFFERENCE BETWEEN WHAT YOU HAVE A RIGHT TO DO AND WHAT
IS RIGHT TO DO”.

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