Misconduct Outside Professional Work, and Conduct That Is Not Misconduct

In one line

Section 35 reaches conduct outside professional work, but it does not reach everything an advocate does, and mere carelessness is not misconduct at all.

In exam wording: the expression "professional or other misconduct" in section 35 of the Advocates Act 1961 extends beyond professional work, but misconduct implies a wrongful intention and not a mere error of judgment, and whether conduct amounts to misconduct depends on the subject matter and the context.

The two directions of the question

A student who has read the last two chapters can list the things that are misconduct. The examinable skill is the other direction, and it has two parts.

How far outside professional work does section 35 reach?

What falls short of misconduct even inside it?

Both are answered by the same case.

The width: conduct that is not professional work at all

Hikmat Ali Khan v. Ishwar Prasad Arya, AIR 1997 SC 864, (1997) 3 SCC 662, decided 28 January 1997 by S.C. Agrawal and Sujata V. Manohar JJ.

Facts. The advocate, on the roll of the Bar Council of Uttar Pradesh and practising at Badaun, assaulted his opponent Radhey Shyam with a knife in the court room of a Munsif-Magistrate at Bisauli during the lunch interval on 18 May 1971, a pistol shot also being said to have been fired at the time. He was prosecuted, convicted under section 307 of the penal law and section 25 of the Arms Act, and sentenced to three years' rigorous imprisonment.

Held. The conduct was such as to make him unworthy of remaining in the profession, and the appropriate order was removal of his name from the roll rather than a suspension.

Note what this case establishes and what it does not. It establishes that an assault is not outside section 35 merely because it is not professional work. It does not establish that everything an advocate does in private is caught, and the features that made it easy were that it happened in a court room and produced a conviction for an offence involving violence.

The limit: Noratanmal Chouraria

Noratanmal Chouraria v. M.R. Murli, AIR 2004 SC 2440, (2004) 5 SCC 689, decided 16 April 2004 by a Bench headed by the Chief Justice with S.B. Sinha and S.H. Kapadia JJ, the judgment being delivered by Sinha J.

Facts. The appellant and the respondent were landlord and tenant, and a rent control proceeding was pending between them in the small causes court. The appellant complained of three incidents: that on 8 October 1993 the respondent came from behind as he left the court hall and hit him on the back; that on 26 October 1993 the respondent, with some rowdy elements, threatened to kill him, which was reported to the police; and that on 1 March 1995 the respondent kicked him on the knee in the court room and told him not to appear to give evidence.