Misconduct Outside Professional Work, and Conduct That Is Not Misconduct

The disciplinary committee of the Bar Council of India, on 27 February 1999, refused to enquire into the complaint. It noted that no criminal proceeding had been initiated, that no charge-sheet had been filed on the FIR, that the complainant had produced nothing showing any follow-up, and, decisively, that the respondent had been appearing in the rent control proceeding not as an advocate but as a party in person.

Held. The appeal under section 38 was dismissed and the refusal to enquire was upheld.

Compare it with Hikmat Ali Khan and the line becomes visible. Both involve violence in or around a court. In Hikmat Ali Khan there was a conviction and the advocate was acting as an advocate; in Noratanmal there was no conviction, no charge-sheet, no follow-up, and the man was in court as a litigant in his own case.

The definitions this chapter exists to supply

The value of Noratanmal is that it collects, in one place, what misconduct means. These are the sentences to carry into an exam.

"The term misconduct implies a wrongful intention, and not a mere error of judgment."

"Misconduct is not necessarily the same thing as conduct involving moral turpitude."

"The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."

And, from Black's Law Dictionary as the Court quoted it, misconduct is "a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour... but not negligence or carelessness."

Take the last four words seriously. Negligence or carelessness is not, without more, misconduct. That is the single most useful sentence in this chapter for a problem question.

Where negligence crosses the line

If carelessness alone is not misconduct, what turns it into misconduct? Two things, and both come from cases already worked.

Concealment. In V.C. Rangadurai v. D. Gopalan, AIR 1979 SC 281, the advocate allowed limitation to expire on two promissory notes entrusted by an old deaf client and his wife. Letting a limitation period lapse is negligence. Deceiving the clients about what had happened is what made it misconduct, and the Court treated the relation as one of trust.

Persistence, and a wrongful purpose. In N.G. Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028, the advocate sought adjournments repeatedly, and on 4 December 1993 asked for one on the ground that he could not speak because of a throat infection and continuous cough, while the complainant found him arguing "forcefully and fluently" before another court in the same building. A single genuine indisposition is not misconduct; a pattern with a false reason is.

Section 24A is a different question

Students conflate the disqualification with the punishment, and the distinction is worth stating once more here because both involve convictions.

Section 24A is a bar to enrolment. It applies to a person applying, it operates automatically on conviction for an offence involving moral turpitude, and it ceases after two years from release. Chapter [Disqualification for Enrolment: Section 24A and the Two-Year Rule] deals with it.

Section 35 is a punishment of a person already on the roll, imposed after an inquiry by a disciplinary committee, and the punishment is whatever the committee orders.

So an advocate convicted after enrolment is not "disqualified" under section 24A. He is liable to a proceeding under section 35, which is what happened in Hikmat Ali Khan.

Conduct in a private capacity: how to reason about it

MU can set this as a problem, and a structured answer looks like this.

Step one. Say that section 35 covers "professional or other misconduct", so private conduct is not excluded merely because it is private.

Step two. Apply the test from chapter [What Professional Misconduct Is: Section 35 and the Words 'Or Otherwise']: would his professional brethren of good repute and competency reasonably regard it as disgraceful or dishonourable?

Step three. Apply Noratanmal: misconduct implies a wrongful intention and not a mere error of judgment; it is not the same as moral turpitude; it is a relative term to be construed with reference to the subject matter and context; and negligence or carelessness is not enough.

Step four. Look for the features that made Hikmat Ali Khan easy: a conviction, violence, a connection with court proceedings, and conduct as an advocate rather than as a party.

Step five. Note that the same facts may be contempt as well, which is Module IV, and that the two jurisdictions are separate.

A worked example

Four complaints reach a State Bar Council against advocates on its roll.

One. An advocate is convicted of criminal breach of trust in relation to a family property and sentenced to two years. Section 35 is engaged: "or other misconduct" covers it, there is a conviction, and dishonesty of that kind would be regarded by his professional brethren as disgraceful. Hikmat Ali Khan is the closest authority, and removal from the roll is in view.

Two. An advocate, defending himself as a party in his own tenancy dispute, loses his temper and pushes the landlord in the corridor. No FIR is pursued, no charge-sheet is filed. This is Noratanmal: the man was in court as a litigant in person, and the incidents were unsubstantiated. The disciplinary committee's refusal to enquire in that case was upheld.

Three. An advocate misses a limitation period because his diary was mis-entered, tells the client at once, and offers to bear the cost. On Noratanmal's definitions this is negligence or carelessness, which is expressly outside misconduct, and there is no wrongful intention. Not misconduct, though the client may have a civil remedy.

Four. The same advocate instead tells the client the suit is proceeding, and keeps saying so for a year. That is V.C. Rangadurai: the neglect is not the misconduct, the deceit is.

Change one fact in complaint two. Suppose the advocate had been appearing as an advocate for a client in that matter and assaulted the opposing party in the court room, and was convicted under section 307. That is Hikmat Ali Khan exactly, and the answer reverses.

What beginners get wrong

"Or otherwise" does not make everything misconduct. Noratanmal is the limit.

Negligence is not misconduct. The definition the Court adopted excludes negligence and carelessness in terms.

Misconduct is not the same as moral turpitude. Noratanmal says so expressly. Moral turpitude is the section 24A test for enrolment.

Acting as a party in person is not acting as an advocate, and that was decisive in Noratanmal.

A conviction is not needed, but its absence, with no charge-sheet and no follow-up, weighed heavily in Noratanmal.

Section 24A does not apply to an enrolled advocate. His conviction is dealt with under section 35.

Quick revision

• Section 35 covers "professional or other misconduct", so private conduct is not excluded merely for being private.
• Hikmat Ali Khan v. Ishwar Prasad Arya, AIR 1997 SC 864: assault with a knife in a court room on 18 May 1971, conviction under section 307 and section 25 of the Arms Act, three years' rigorous imprisonment; unworthy of remaining in the profession, so removal from the roll and not suspension.
• Noratanmal Chouraria v. M.R. Murli, AIR 2004 SC 2440: three alleged assaults on a landlord by a tenant who was appearing as a party in person; no criminal proceeding, no charge-sheet, no follow-up; the Bar Council of India's refusal to enquire was upheld.
• The definitions, from Noratanmal: misconduct implies a wrongful intention, and not a mere error of judgment; it is not necessarily the same as conduct involving moral turpitude; it is a relative term construed with reference to subject matter and context; and it is "improper or wrong behaviour... but not negligence or carelessness".
• Negligence becomes misconduct where there is concealment (V.C. Rangadurai) or a pattern with a false reason (N.G. Dastane, the throat infection and the advocate arguing "forcefully and fluently" elsewhere).
• Section 24A bars enrolment and turns on moral turpitude, ceasing after two years. Section 35 punishes an advocate already on the roll.

Test yourself

1. Does section 35 reach conduct outside professional work? Yes. It covers "professional or other misconduct". Hikmat Ali Khan v. Ishwar Prasad Arya, where an advocate assaulted his opponent with a knife in a court room and was convicted under section 307, resulted in removal from the roll.

2. State three propositions on the meaning of misconduct from Noratanmal. That misconduct implies a wrongful intention and not a mere error of judgment; that it is not necessarily the same thing as conduct involving moral turpitude; and that it is a relative term to be construed with reference to the subject matter and the context, having regard to the scope of the Act being construed.

3. Is negligence misconduct? Not by itself. The definition the Court adopted in Noratanmal describes misconduct as improper or wrong behaviour, wilful in character, "but not negligence or carelessness".

4. What was decisive in Noratanmal? That the respondent had been appearing in the rent control proceeding not as an advocate but as a party in person, together with the absence of any criminal proceeding, any charge-sheet on the FIR, or any follow-up by the complainant.

5. When does negligence become misconduct? Give two situations with authority. Where it is concealed from the client, as in V.C. Rangadurai, where the advocate let limitation expire on two promissory notes and then deceived the clients about it; and where it forms a pattern supported by a false reason, as in N.G. Dastane, where an adjournment was sought on the ground of a throat infection while the advocate was arguing forcefully and fluently before another court in the same building.

6. An enrolled advocate is convicted of an offence involving moral turpitude. Is he disqualified under section 24A? No. Section 24A governs admission to the roll and bars a person applying for enrolment. An advocate already on the roll is dealt with under section 35 as having been guilty of professional or other misconduct, and the disciplinary committee decides the punishment.