You are on page 1of 14

Chapter V Conduct of Advocates

Sec. 35 Punishment of Advocates for misconduct


Sec. 36 Disciplinary Powers of BCI
S.36 A - Change in constitution of disciplinary Committee
S.36 B - Disposal of Disciplinary proceedings
S.37 Appeal to the BCI
S.38 Appeal to Supreme Court
S.39 - Application of S. 5 and S.12 of Limitation Act, 1963
S.40 Stay of Order
S. 41 Alternation in roll of advocates
S. 42 Powers of disciplinary Committee
S.42 A Powers of BCI and other committee
S. 43 Cost of proceedings before a disciplinary committee
S.44 Review of orders by disciplinary committee

Punishment of Advocates for misconduct


35 (1) When on a complaint or otherwise SBC believe that any
advocate on its roll has been guilty of professional or other misconduct
The case be referred for disposal of its disciplinary committee.
SBC may by own motion or on application made to it by any interested
person withdraw the above said proceeding from disciplinary
committee Then direct the inquiry By any other disciplinary
committee of that State Bar Council.
(2) The disciplinary committee of a SBC shall fix a date for the hearing
Sent a notice to (a). The Advocate concerned and (b). The Advocate
General of the State.
(3) After giving the opportunities of hearing to advocate concerned and
the Advocate General following order may be passed :
a. (i) Dismiss the complaint or (ii) where the proceedings were initiated at
the instance of the SBC, direct that the proceedings be filed.
b. Reprimand the advocate
c. Suspend the advocate from practice for such periods as it may deem fit.
d. Remove the name of the advocate from the State roll of advocates

Punishment of Advocates for misconduct


(4) Where an advocate is suspended from practice u/s
35(3)(c) The concerned advocate shall be debarred
from practicing in any court or before any authority or
person in India during such period of suspension,
(5) Where any notice is issued to the Advocate-General
u/s 35(2) the AG may appear before the disciplinary
committee of the SBC either in person or through any
advocate appearing on his behalf.
[Explanation - expression "Advocate-General" and
"Advocate-General of the State" shall, in relation to the
Union territory of Delhi, mean the Additional Solicitor
General of India.]

Disciplinary powers of Bar Council of


India- S.36
36(1) On receipt of a complaint or otherwise BCI has reason to believe

that any advocate whose name is not entered on any State roll Guilty of
professional or other misconduct the case be referred for disposal to its
disciplinary committee.

36(2) The disciplinary committee of the BCI may (a) either of its own
motion or (b) on a report by any SBC or (c) an application made to it by any
person interested withdraw for inquiry and any proceedings for
disciplinary action against any advocate pending before the disciplinary
committee of any SBC and dispose of the same.
36 (3) The disciplinary committee of the BCI while disposing of any case
under this section, shall follows procedure laid down in Section 35 i.e. relating
to issuance of notices & opportunity of hearing to advocate concerned and
to the Advocate-General or the Attorney-General of India as the case may be.
36(4) (a) At the time of disposing the proceedings u/s 36 committee of the
BCI can make orders as described u/s 35(3) and (b) but where, any
proceedings have been withdrawn for inquiry before the disciplinary
committee of the BCI the SBC concerned shall give effect to any such order.

Changes in Constitution of Disciplinary Committee -36A

36A when any proceedings has been started either


u/s 35 i.e. by SBC or u/c 36 i.e. by BCI
But the disciplinary committee of the SBC or the
disciplinary committee of the BCI ceases to exercise
jurisdiction
and then the said disciplinary Committee has been
succeeded by another committee which has and
exercise jurisdiction , the disciplinary committee of the
State Bar Council or the disciplinary committee of BCI,
as the case may be
The said so succeeding committee may continue the
proceedings from the stage at which the proceedings
were so left by its predecessor committee.

Disposal of Disciplinary proceedings 36B


36B (1) The disciplinary committee of a State Bar Council shall dispose of
the complaint received by it u/c 35 expeditiously and within a period of
one year from the date of the receipt of the complaint or the date of
initiation of the proceedings at the instance of the SBC, as the case may be.
In case of failure of proceeding within such period Such proceedings shall
stand transferred to the BCI which may dispose of the same as if it were a
proceeding withdrawn for inquiry u/s 36(2).
(2) where on the commencement of the Advocates (Amendment) Act, 1973,
any proceedings in respect of any disciplinary matter against an advocate is
pending before the disciplinary committee of a State Bar Council,
That disciplinary committee of the SBC shall dispose of the same within a
period of 6 months from the date of such commencement or
That disciplinary committee of SBC shall dispose of the same within a
period of one year from the date of the receipt of the complaint, or, as the
case may be, the date of initiation of the proceedings at the instance of the
SBC, whichever is later,
In case of failure of proceedings u/s 36B within time prescribed i.e. 6
months or 1 year such other proceeding shall stand transferred to the Bar
Council of India for disposal.

Appeal to Bar Council of India S.37


Any person aggrieved by the order passed by disciplinary committee
U/S 35 of the Advocates act, 1961 he may prefer appeal to the BCI
within sixty days of the date of the communication of the order to him.
The Advocate General of State may prefer appeal against the order
passed by disciplinary committee U/S 35 of the Advocates act, 1961
Within sixty days of the date of the communication of the order to him.
Every such appeal shall be heard by the disciplinary committee of BCI
which may pass such order as it deems fit including an order varying
the punishment awarded by the disciplinary committee of SBC.
Proviso No order of the disciplinary committee of SBC shall be varied
by the disciplinary committee of BCI so as to prejudicially affected
giving his reasonable opportunity of being heard.
[Compliance of Principle of Natural Justice]
Law of Limitation particularly S.5 & 12 are applicable in appeal u/s 37 &
38 of the Advocates act, 1961 S.39

Appeal to Supreme Court of India S.38


Any person aggrieved by an order made by the disciplinary committee of the Bar
Council of India under Section 36 or Section 37 prefer an appeal before Supreme
court of India within 60 days on which the order is communicated to him
The Attorney-General of India or the Advocate-General of the State may prefer an
appeal to the supreme court of India within sixty days of the date on which the order
is communicated to him,
The Supreme Court may pass such order including an order varying the punishment
awarded by the disciplinary committee of the Bar Council of India] thereon as it
deems fit :
Proviso no order of the disciplinary committee of the Bar Council of India shall be
varied by the Supreme Court so as to prejudicially affect the person aggrieved
without giving him a reasonable opportunity of being heard.]
Comments In an appeal under Section 38 of the Act this Court would not, as a
general rule, interfere with the concurrent finding of fact by the Disciplinary
Committee of the BCI & SBC unless the finding is based on (a) no-evidence or (b) it
proceeds on mere conjectures and surmises. (c) Finding in such disciplinary
proceedings must be sustained by a higher degree of proof than that required in civil
suits, (d) yet falling short of the proof required to sustain a conviction in a criminal
prosecution.
There should be convincing preponderance of evidence.
Pandurang Dattatraya Khandekar v. The Bar Council of Maharashtra, AIR 1984
SUPREME COURT 110

Non appearance of the counsel in the case when


case is called out whether professional misconduct.

False affidavit has been made by the deponent client


regarding the age. The advocate subsequently identify
it. Is there any responsibility of advocate for doing false
affidavit?

Duty of advocate One should not refer a


judgment already overruled and that there is no other judgment by
larger
bench.

Referring wrong arguments or Changing stand at


different stages of proceedings is no offence covering the application

Whether advocacy is
business?
An advocate is an officer of the Court and
legal
profession is not a trade or business, rather
it is an officer of the court and legal
profession is not a trade or business rather
it is a noble profession and advocates have
to strive to secure justice for
their clients within legally permissible limits.
R.N. Sharma Advocate v. state of Haryana
, 2003 (3) RCR (Cri) 166 (P&H).

Whether an Advocate argue his own case as


an advocate?