What Professional Misconduct Is: Section 35 and the Words 'Or Otherwise'

Section 36(2), by contrast, is a withdrawal by the Bar Council of India's disciplinary committee to itself, and it is dealt with in chapter [Transfer of Proceedings from the State Bar Council to the Bar Council of India].

The Act does not define misconduct

This is the first thing to say in any answer on this topic, and most students leave it out.

Parliament created an offence, attached to it punishments running up to the end of a career, and then declined to say what it was. That is unusual and it is deliberate: a definition would have to be a list, and a list would be an invitation to do everything not on it.

The consequence is that the meaning is judge-made, and the courts have supplied three things: a test, a width, and a standard.

The test: what the profession would call disgraceful

The classical formulation is Darling J's, and the Supreme Court set it out in N.G. Dastane v. Shrikant S. Shivde, AIR 2001 SC 2028, recording that it was quoted in R.D. Saxena and had been approved by the Privy Council:

"If it is shown that an advocate 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 say that he is guilty of professional misconduct."

Three features of that test are examinable.

The judges are his peers. The standard is what professional brethren of good repute and competency would say, not what the public would say and not what the advocate himself thinks.

"Disgraceful or dishonourable." A high bar. Discourtesy, inefficiency or an error of judgement is not enough; the conduct must be of a kind the profession would be ashamed of.

"In the pursuit of his profession... with regard to it." The classical test is aimed at professional conduct. That is where the Act goes further, as the next paragraph shows.

The width: "professional or otherwise"

Section 35(1) does not say "professional misconduct". It says "professional or other misconduct."

Those three extra words are the width of the section, and they were considered in N.G. Dastane, where the Court, quoting R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, said:

"Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section uses the expression misconduct, professional or otherwise. The word misconduct is a relative term. It has to be considered with reference to the subject matter and the context wherein such term occurs. It literally means wrong conduct or improper conduct."

So the section reaches conduct that is not professional work at all. That is how Hikmat Ali Khan v. Ishwar Prasad Arya, AIR 1997 SC 864, is a misconduct case: the advocate assaulted his opponent with a knife in a court room and was convicted under section 307 of the penal law, and his name was ordered to be removed from the roll.

But the width is not unlimited, and chapter [Misconduct Outside Professional Work, and Conduct That Is Not Misconduct] is where the limit is worked out from the cases.

The standard: a profession, not a criminal court

Three points that follow from the disciplinary jurisdiction being what it is, and each is a good short question.

It is not a prosecution. The proceeding is an inquiry into fitness to remain in a profession. The punishments in section 35(3) are not sentences.

An acquittal does not end it. A criminal court applies proof beyond reasonable doubt to a statutory offence; a disciplinary committee asks whether the conduct was such as his professional brethren would call disgraceful. The two questions are different, so the same facts can produce an acquittal and a finding of misconduct.

But the proceeding is judicial in form. Section 42(2) provides that all proceedings before a disciplinary committee are deemed to be judicial proceedings within the meaning of sections 193 and 228 of the penal law, and that the committee is deemed to be a civil court for certain purposes. So evidence is taken, the advocate is heard, and the committee's powers are a civil court's, as chapter [The Disciplinary Committee of the State Bar Council: Organisation, Powers and Procedure] sets out.

Misconduct need not be dramatic

Students expect misconduct to mean theft or bribery. N.G. Dastane is worth knowing precisely because it is not.

Facts. A complaint was made against advocates who repeatedly sought adjournments so as to protract the cross-examination of a witness who was present in court.

Held. Seeking adjournments to postpone the examination of witnesses who are present in court, without making other arrangements for examining them, is a dereliction of the advocate's duty to the court and is capable of amounting to professional misconduct. The Court's reasoning is worth reading for its own sake: witnesses come because they have no other option, they are responsible citizens with work of their own, and they cannot be treated as less respectable people to be told to come again and again to suit the advocate's convenience.

So routine obstruction, done often enough and for the wrong reason, is misconduct. That is a more useful lesson for a student than any number of bribery cases.

A worked example

A litigant writes to the Bar Council of Maharashtra and Goa alleging that his advocate took Rs 40,000 for court fees, never paid it, and let the suit be dismissed for non-payment.

Step one, section 35(1). The Council reads the letter. Has it reason to believe the advocate has been guilty of professional or other misconduct? On that allegation, yes. It shall refer the case to its disciplinary committee. The word is mandatory.

Step two. The complainant then writes withdrawing the complaint, saying the money has been repaid. The proceeding does not automatically end. Section 35(1) lets the Council act "on receipt of a complaint or otherwise", so the jurisdiction did not depend on the complaint and does not fall with it.

Step three. The advocate is separately prosecuted and acquitted for want of proof beyond reasonable doubt. That does not conclude the disciplinary proceeding, which asks a different question by a different standard.

Step four, applying the test. Would his professional brethren of good repute and competency reasonably regard taking a client's money for court fees, not paying it, and letting the suit be dismissed as disgraceful or dishonourable? Plainly yes.

Change one fact. Suppose the money was paid but the advocate missed a hearing because he had double-booked himself, and the suit was dismissed for default. That is negligence, and the test is not met by every mistake: the conduct must be such as the profession would regard as disgraceful or dishonourable. Repetition, or an attempt to conceal it from the client, would change the answer.

What beginners get wrong

Section 35 does not define misconduct. Say so first.

The section is not confined to professional work. It says "professional or other misconduct".

A complaint is not necessary, and its withdrawal is not decisive.

An acquittal in a criminal court is not an answer to a disciplinary charge on the same facts.

Section 35(1A) does not send a case to the Bar Council of India. It moves it to another disciplinary committee of the same State Bar Council.

Negligence is not automatically misconduct. The test is what professional brethren of good repute and competency would reasonably regard as disgraceful or dishonourable.

Quick revision

• Section 35(1): on a complaint or otherwise, where a State Bar Council has reason to believe an advocate on its roll has been guilty of professional or other misconduct, it shall refer the case to its disciplinary committee.
• The words "if it does not summarily reject the complaint" were omitted from section 35(2) in 1973.
• Section 35(1A), inserted 1977: the State Bar Council may, of its own motion or on the application of any person interested, withdraw a proceeding from one of its disciplinary committees and direct the inquiry by another committee of the same Council.
• The Act does not define misconduct.
• The test, Darling J's, approved by the Privy Council and set out in N.G. Dastane: something done in the pursuit of his profession which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.
• The width: misconduct is a relative term, considered with reference to the subject matter and context, and literally means wrong or improper conduct; the section covers "professional or otherwise".
• The standard: not a prosecution, not concluded by an acquittal, but judicial in form by section 42(2).
• N.G. Dastane: seeking adjournments to postpone the examination of witnesses present in court is a dereliction of duty capable of amounting to misconduct.

Test yourself

1. Does the Advocates Act define professional misconduct? No. Section 35 creates the jurisdiction and uses the expression "professional or other misconduct" without defining it. The meaning has been supplied by the courts.

2. State the classical test. That if an advocate 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 say that he is guilty of professional misconduct. It is Darling J's formulation, which the Privy Council approved and which the Supreme Court set out in N.G. Dastane v. Shrikant S. Shivde.

3. What is the effect of the words "or otherwise" in section 35(1)? They take the section beyond professional work, so that conduct in another capacity may be misconduct. Hikmat Ali Khan v. Ishwar Prasad Arya, where an advocate assaulted his opponent with a knife and was convicted under section 307, is an instance.

4. A complainant withdraws his complaint. Must the proceeding stop? No. Section 35(1) allows the State Bar Council to act on a complaint "or otherwise", so the jurisdiction does not depend on the complaint and does not fall with its withdrawal.

5. An advocate is acquitted in a criminal trial on the same facts. Is the disciplinary proceeding concluded? No. A criminal court decides a statutory offence on proof beyond reasonable doubt; a disciplinary committee asks whether the conduct would be regarded as disgraceful or dishonourable by his professional brethren. The questions and the standards differ.

6. Distinguish section 35(1A) from section 36(2). Section 35(1A) lets the State Bar Council move a proceeding from one of its own disciplinary committees to another committee of the same Council. Section 36(2) lets the disciplinary committee of the Bar Council of India withdraw a proceeding pending before a State Bar Council's committee for inquiry before itself.

7. Give an example of misconduct that involves no dishonesty at all. Repeatedly seeking adjournments to postpone the examination of witnesses who are present in court, without making other arrangements for examining them, which N.G. Dastane held to be a dereliction of the advocate's duty to the court.