Indian Cases on Professional Misconduct
According to Darling J. in Re A Solicitor Ex parte the Law Society, [1912] 1 KB 302, professional misconduct is infamous conduct in a professional respect. However, negligence by itself is not professional misconduct. This post contains excerpts of the decisions of the Supreme Court of India in cases relating to professional misconduct.
Institute Of Chartered Accountants vs L.K. Ratna & Others (1986)
“The Disciplinary Committee is not vested by the Act with power to render any findings. It is the Council which is empowered to find whether the member is guilty of misconduct. Both s. 21(2) and s. 21(3) are clear as to that.
If on receipt of the report the Council finds that the member is not guilty of misconduct, s. 21(2) requires it to record its finding accordingly, and to direct that the proceedings shall be filed or the complaint shall be dismissed. If, on the other hand, the Council finds that the member is guilty of misconduct, s. 21(3) requires it to record a finding accordingly, and thereafter to proceed in the manner laid down in the succeeding subsections.”
“Now when it enters upon the task of finding whether the member is guilty of misconduct, the Council considers the report submitted by the Disciplinary Committee. The report constitutes the material to be considered by the Council. The Council will take into regard the allegations against the member, his case in defence, the recorded evidence and the conclusions expressed by the Disciplinary Committee.”
“We consider it significant that the power to find and record whether a member is guilty of misconduct has been specifically entrusted by the Act to the entire Council itself and not to a few of its members who constitute the Disciplinary Committee.”
“Upon the aforesaid considerations, we are of definite opinion that a member accused of misconduct is entitled to a hearing by the Council when, on receipt of the report of the Disciplinary Committee, it proceeds to find whether he is or is not guilty. The High Court is, therefore, right in the view on this point.”
“Now the Council is vested with power under s. 21 to find whether the member is guilty of misconduct. There is nothing in s. 21 of the Act, however, to indicate whether the members of the Disciplinary Committee should be excluded when the Council enters upon its task. The answer must be found from the general scheme of the Act and the fundamental principles of law.”
“Before we conclude, we may refer to a third point raised before us, the point being whether the Council is obliged to give reasons for its finding that a member is guilty of misconduct. It seems to us that it is bound to do so.”
Adi Pherozshah Gandhi vs H. M. Seervai, Advocate-General Of Maharashtra, Bombay (1970)
“The Advocates Act gives special preeminence to the Attorney General and the Advocate General in disciplinary proceedings because it is not an attempt of the Disciplinary Committee to redress the grievance of an individual complainant but to find out whether there is any breach of professional standard and conduct. The high tradition, dignity and purity of the Bar is to be maintained. The Attorney General and the Advocate General are heard because they are heads of their respective Bar and the proceedings affect discipline and dignity of the Bar and touch the professional conduct of an Advocate.”
“For these reasons I am of opinion that the Advocate General of the State of Maharashtra is competent to appeal as a person aggrieved under section 37 of the Advocates Act, 1961.”
Pandurang Dattatraya Khandekar vs Bar Council Of Maharashtra (1983)
“The question is whether there was any evidence upon which the Disciplinary Committee could reasonably find that they have been guilty of ‘professional misconduct, within the meaning of Sub-section (1) of Section 35 of the Act. The test of what constitutes “grossly improper conduct in the discharge of professional duties” has been laid down in many cases. In the case of in Re A Solicitor Ex parte the Law Society, [1912] 1 KB 302. Darling, J. adopted the definition Of “infamous conduct in a professional respect” on the part of a medical man in Allinson v. General Council of Medical Education & Registration [1894] 1 QB 750 applied to professional misconduct on the part of a Solicitor, and observed :
If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General medical Council to say that he has been guilty of ‘infamous conduct in a professional respect’, The Privy Council approved of the definition in George Frier Grahams v. Attorney General, Fiji AIR [1936] PC 224 and this Court in the matter of P.An Advocate has followed the same. The narrow question that remains for consideration now is whether the finding of the Disciplinary Committee as to professional misconduct on the part of the appellant can be legally sustained.”
“Negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no suggestion here, and we are therefore able to say that there is no case to investigate, and that no reflection adverse to his professional honour rests upon Mr. M.’, The decision was followed by the Calcutta High Court in re An Advocate ILR [1935] 62 Cal. 158 and by the Allahabad High Court in the matter of An Advocate of Agra ILR [1940] All. 386 and by this Court in the matter of P. An Advocate.”
“The test to be applied in all such cases is whether the proved misconduct of the advocate is such that he must be regarded as unworthy to remain a member of the honourable profession to which he has been admitted, and unfit to be entrusted with the responsible duties that an advocate is called upon to perform. The Judicial Committee of the Privy Council in A, a Pleader v. The Judges of the High Court of Madras AIR [1930] PC 144 laid down that charges of professional misconduct must be clearly proved and should not be inferred from mere ground for suspicion, however reasonable, or what may be error of judgment or indiscretion.”
D.P. Chadha vs Triyugi Narain Mishra & Ors (2000)
“The term misconduct has not been defined in the Act. However, it is an expression with a sufficiently wide meaning. In view of the prime position which the advocates occupy in the process of administration of justice and justice delivery system, the courts justifiably expect from the lawyers a high standard of professional and moral obligation in the discharge of their duties. Any act or omission on the part of a lawyer which interrupts or misdirects the sacred flow of justice or which renders a professional unworthy of right to exercise the privilege of the profession would amount to misconduct attracting the wrath of disciplinary jurisdiction.”
“In the Bar Council of Maharashtra Vs. M.V. Dabholkar (1976 (2) SCC 291), Krishna Iyer, J. said that the vital role of the lawyer depends upon his probity and professional lifestyle. The central function of the legal profession is to promote the administration of justice. As monopoly to legal profession has been statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of confidence of community in him as a vehicle of justice __ social justice.”
“Professional misconduct is grave when it consists of betraying the confidence of a client and is gravest when it is a deliberate attempt at misleading the court or an attempt at practising deception or fraud on the court. The client places his faith and fortune in the hands of the counsel for the purpose of that case; the court places its confidence in the counsel in case after case and day after day. A client dissatisfied with his counsel may change him but the same is not with the court. And so the bondage of trust between the court and the counsel admits of no breaking.”
“We are aware that a charge of misconduct is a serious matter for a practising advocate. A verdict of guilt of professional or other misconduct may result in reprimanding the advocate, suspending the advocate from practice for such period as may be deemed fit or even removing the name of the advocate from the roll of advocates which would cost the counsel his career. Therefore, an allegation of misconduct has to be proved to the hilt.”
