1) Meaning of Misconduct -
Misconduct is the antonyms of conduct. Conduct means behavior with good manners and treatment shown towards others . Misconduct represents misbehavior. Misconduct as explained in the Dictionary is 'improper conduct'. The term 'misconduct' has been defined in Black's Dictionary as 'a transgression of some established and defined rule of action, a forbidden act , a dereliction of duty, unlawful behavior, wilful in character, improper or wrong behavior'. Its synonyms are misdemeanor, impropriety, mismanagement,offence , but not negligence or carelessness.
In State of Panjab V. Ram Singh (AIR 1992, SC 2188) the Supreme Court held that the term may involve moral turpitude,
An advocate is bound to conduct himself in a manner befitting the high and honorable legal profession. The legal profession is a noble profession having high traditions. An advocate is expected to uphold those traditions. He must comply with the conduct of professional ethics and etiquette as laid down by bar council of India.
2) Meaning of Professional misconduct and other misconduct -
Section 35 of the Advocate makes it clear that an advocate may be punished for professional misconduct or other misconduct. The terms misconduct and professional misconduct are not defined In Section 35 or any other provisions of the Advocate Act, 1961. The expression 'professional or other misconduct' are mentioned in section 10 of Bar councils Act,1926. by using those words it was made clear that the authority might take action in all cases of misconduct, whether in professional or other capacity.
Every misconduct may not be Professional or other misconduct. Only unsatisfactory professional conduct of a substantial, recurring or continuing nature is considered as professional or other misconduct. Thus a guilty or fraudulent grossly improper conduct of an advocate in the discharge of his professional duty is considered as professional misconduct.
Professional misconduct is conduct occurring otherwise than in connection with the practice of law that would justify a finding that its preparation is not of good fame and character or is not a fit and proper person to remain on the Roll of Legal Practitioners.
It is professionally improper for a member of Bar to prepare false document or to draw pleadings knowingly that the allegations made are untrue to his knowledge. Thus, giving of improper legal advice may amount to professional misconduct.
Negligence and Professional misconduct -
Whether negligence will amount professional misconduct or not depends upon the facts and circumstance of each case.Gross negligence in the discharge of duties partake of shade of delinquency and would undoubtedly amount to professional misconduct. But negligence without moral turpitude or delinquency may not amount to professional misconduct.
Moral turpitude -
Moral turpitude is very serious professional misconduct. From section 24-A of the Advocate Act, it is clear that a person cannot be admitted as an advocate on a State Roll if he is convicted of an offence involving moral turpitude. Thus a person who is convicted of an offence involving moral turpitude is disqualified for being admitted as an advocate on the State Roll of advocates. This means that the conduct involving conviction of an offence moral turpitude which will disqualify a person from being enrolled as an advocate has to be considered a serious misconduct.when found to have been committed by a person who is enrolled as an advocate and it would call for the imposition of punishment of removal of the name of the advocate from the Roll of Advocates.
3) Examples of Misconduct of Advocates -
- Discourteous behaviour towards the Bench in the Court.
- Involving in moral turpitude.
- Defrauding of cheating the party.
- Engaging in a business of profit making.
- Failing to file a case after accepting a brief and fee plus expenses.
- Exhibiting ill temper which has the effect of overbearing the Court.
- Giving of improper Advice and wrong advice
- Use of hot words or epithets or disrespectful, derogatory or threatening language in the court.
- Framing of charge against Advocate.
The Advocate Act, 1961 , has conferred the jurisdiction to take action in all cases of misconduct both professional or other and left it to the discretion of Disciplinary Authority. It is the charging party has the burden of proving the charge of misconduct in the Disciplinary proceedings.