NALSAR- Legal Ethics.pptx

Legal Ethics and Accountancy Clinic
Mandatory Course
Module 2
Ethical Rules and Interpretation under the Advocates Act

Topics to be discussed in this Module
• Is the legal profession unique in the role it plays
• Law as a self regulated profession
• most law is made by the legislature, courts and administrative
agencies, is this also true for “lawyers law”?
• is it a good idea to give lawyers such a major role in regulating
their profession?
•Why study the history and sociology of the legal profession?
• Knowledge about the organization that makes and enforces rules
and also the policy issues is very useful for lawyers.
• Helps in improvement of the profession–much impetus for law
reform comes from fresh perceptions of newcomers–with
background knowledge young lawyers can improve the profession
and the justice system.

Topics to be discussed in this Module
Indian legal profession
Types of legal practice in India
Advocate Act- An Overview
Bar Council of India and State Bar Councils
Admission to practice
Ethics code:
 What are the functions of ethics code
 Do these ethics code explain most of what a lawyer needs to
know about his ethical obligation?
 Regulation of Malpractice by lawyers
 Lawyers- Client Relation
 Other duties of Lawyers
 Bar and the Bench relation

Role and functions of a lawyer
• Independent legal profession is an essential condition for proper
administration of justice.
• It is also a necessary ingredient and guarantor of the rule of Law.
• Historically lawyer’s had played a key role in the preservation of
democratic values, upholding the constitutional goals, enforcement of
human rights and bring accountability and transparency in governance
and justice system.
• Like a judge, a lawyer is a functionary of the judicial system with powers
and duties as important as those of a court and this is the great role to be
played by the lawyers in this contemporary society.
• With the help of the members of the legal profession a sense of security
can be inculcated in the minds of the common man.
• A government of law is the supreme manifestation of civilization. Both
its creation and efficient operation are usually the result of the lawyer in
his triple capacity of legislator, judge and practitioner.

What difference does it make that lawyers are professionals?
• The relationship between professional and ethical
expectation–professionalism dictates set of ethics specific to
the role–e.g. criminal lawyer can leave out incriminating
evidence obtained improperly.
• Aspects of being a professional:
• exclusivity–some self imposed ethical requirement like doing pro
bono work etc.
• commitment to serving others–internal standard of conduct.
• doing a unusually careful job using high degree of skill and care–
because of exclusivity of the profession and the self imposed ethical
obligation.
• complying with articulated standards of conduct–professional must
also comply with external standards of ethical conduct. For example,
the duty of confidentiality of client’s information.

Regulating legal profession: “a rethinking of requirements of
the profession”
• Current regulatory objectives:-
omonopolization of particular social tasks
othe marketing of legal services
othe concern about conflicts of interest
othe ethics of zealous representation
• Priorities of interests served by the regulatory system:-
othe public interest in seeing justice done
othe expeditious resolution of disputes at the lowest practical
ointerest of clients
ointerest of lawyers- individually and collectively
• Conflict in ordering of priorities of interest in the existing regulatory system:-
Code makes the interest of the individual attorney primary. In second position is the
interest of clients, particularly those client interests which diverge from the interests
of the public. The public interest comes third and last.

Types of legal practice in India
Legal practice envelopes a lot of acts:
• appearing in the courts
• consultation held with clients
• giving his legal opinion
• draft instruments, pleadings, affidavits or any other
documents
• participate in any conference involving legal discussions
• working in any office or firm as a legal officer
• appearing for clients before an arbitration tribunal or
mediations
• Negotiations
Ex. Captain Harish Uppal vs UOI (2003)2SCC45

Advocate Act- An Overview
• Advocates Act, 1961, which received the assent of the President of India on
the 19th of May, 1
• To have, in course of time only one class of legal practitioners viz,
advocates, with the right given to them to practice in all courts and tribunals
in India,
• To take away the powers till then vested in the courts, in the matter of
admission of advocates and the maintenance of the rolls, and their
disciplinary conduct (subject to an ultimate appeal to the Supreme Court)
• Constitution of a Central Bar Council and State Bar Councils for purposes
of control and supervision with powers
• Every Bar Council constituted under the Act is a body corporate having a
common seal, and may, by the name by which it is known sue and be sued

Bar Council of India and State Bar Councils- the main lawyer
regulating body
Functions of the Bar Council of India are to prepare and maintain a common roll
of advocates, to lay down standards of professional conduct and etiquette for
advocates, to lay down the procedure to be followed by its disciplinary committees
and the disciplinary committee of each state Bar Council; to safeguard the rights,
privileges and interests of advocates; to promote and support law reform; to deal
with and dispose of any matter arising under the Act, which may be referred to it by
a state Bar Council; to exercise general supervision and control over state Bar
Councils; to promote legal education and to lay down standards of such education i
Functions of a State Bar Council are to admit persons as advocates on its roll; to
prepare and maintain such roll; to entertain and determine cases of misconduct
against advocates on its roll; to safeguard the rights, privileges and interests of
advocates on its roll; to promote and support law reform; to manage and invest the
funds of the Bar Council; to provide for the election of its members; to perform all
other functions assigned to it by or under the Act and to do all other things
necessary for discharging the aforesaid functions.

Scope of ‘Right to practice’ in India
–Section 29, 30, 33 and 45 of Advocates Act, 1961
Sec 29 - Advocates to be the only recognised class of persons entitled to
practise law- Subject to the provisions of this Act and any rules made
thereunder, there shall, as from the appointed day, be only one class of
persons entitled to practise the profession of law, namely, advocates.
Sec 30- Right of advocates to practise.―Subject to the provisions of this Act,
every advocate whose name is entered in the [State roll] shall be entitled as
of right to practise throughout the territories to which this Act extends,―
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by
or under any law for the time being in force entitled to practise

Contd…
• Sec 33- Advocates alone entitled to practise―Except as otherwise
provided in this Act or in any other law for the time being in force, no
person shall, on or after the appointed day, be entitled to practise in any
court or before any authority or person unless he is enrolled as an
advocate under this Act.
• Sec 45- Penalty for persons illegally practising in courts and before other
authorities―Any person who practises in any court or before any
authority or person, in or before whom he is not entitled to practise
under the provisions of this Act, shall be punishable with imprisonment
for a term which may extend to six months.
• Nibaran Bora vs. UOI (AIR 1992 Gau 54)

Power of court to allow non-lawyers to appear
Sec 32- Power of court to permit
appearances in particular
cases―Notwithstanding anything contained
in this Chapter, any court, authority, or
person may permit any person, not enrolled
as an advocate under this Act, to appear
before it or him in any particular case.

Admission to bar- Enrolment
– Procedure of enrolment—relevant provision of Advocates Act, 1961 [Sec 24 and
Sec 28 (2) (d)]
– Disqualification from enrolment (Sec 24-A)
• Should the BCI be able to create additional requirements for admission to Bar?
Prescribing Maximum age for enrolment
• Indian Council of Legal Aid vs. BCI (AIR1995SC691)
Mandatory Pre-enrolment training
• V. Sudeer vs. BCI (AIR 1999 SC 1167)
Conducting bar exams
• Bar Council of India vs. Bonnie FOI Law College , Special Leave to Appeal (Civil) No.
22337/2008

Condition and Procedure for Enrolment
• Procedure of enrolment—relevant provision of Advocates
Act, 1961 [Sec 24 and Sec 28 (2) (d)]
• Requirements of State Bar Councils Rules
»Requirement of past criminal records during enrolment to
bar
»Requirement of ‘Character and Fitness’ certificate during
admission to the Bar

Regulatory authority of Courts
Supreme Court and High Courts power to regulate
– Section 34 of Advocate Act
– Section 52 of Advocates Act
– Article 145 of the Constitution of India
See case of Ex. Captain Harish Uppal vs UOI
(2003)2SCC45

Contd…
Requirements to be an AOR in Supreme Court:
According to “Rule 16 Order IV of Supreme Court Rules, 1966”
• AOR needs to undergo training for one year with an Advocate on Record
• Pass such tests as may be held by the Court
• Has an office in Delhi within a radius of 10 miles from the Court House
Should there be additional requirements for admission to the Supreme Court Bar
There is no question of a conflict between the legislative power of Parliament and the
rule-making power of this Court, because by reason of the opening words of Art. 145, any
rule made by this Court would have operation only subject to laws made by Parliament on
the subject of the entitlement to practise
In Re: Lily Isabel Thomas, AIR1964SC855

• Regulation of Lawyers by Law firms and other employers
• law firms and other organizations that employ lawyers
adopt internal rules and standards of practice that
regulate lawyers employed.
• Regulations by Clients
–many clients (especially government agencies and large
corporations) impose rules of conduct on lawyers they
employ. For example: using auditors to monitor the work
of lawyers.

BCI Ethics Code- lawyer-client relationship
•Formation- No specific guidelines under the existing rules
•Rule11 of BCI Rules of Chapter-2 Part IV
•to form a lawyer client relationship, must the client sign an agreement or
pay a fee?
•Retainer agreements or empanelment
• Rule-2 of the proposed code of ethics: It shall be the duty of
an advocate, when accepting a brief, to record in a letter to
his/her client, the scope of work to be done in the brief and
the services for which the client will be charged by the
advocate.”
•Rule11 of BCI Rules of Chapter-2 Part IV: An advocate shall
not stipulate for a fee contingent on the results of litigation or
agree to share the proceeds thereof.

Contd.
•should a lawyer accept work that requires knowledge of an area of law in which a
lawyer has no experience or knowledge.
– Rule11 of BCI Rules of Chapter-2 Part IV: Special circumstances may justify his refusal to accept a
particular brief.
– Rule-4 of the proposed code of ethics: An Advocate may decline a specialist brief if he/she
considers himself not competent to accept the brief.
•Can a lawyer turndown a request for legal assistance of unpopular clients
»To defend an accessed of rape
»Ajmal Kashab
–Rule11 of BCI Rules of Chapter-2 Part IV: Special circumstances may justify his refusal to accept a
particular brief
–Rule 15 of BCI Rules of Chapter-2 Part IV : He shall defend a person accused of a crime regardless of
his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which
requires that no man should be convicted without adequate evidence.
–Rule 15 of BCI Rules of Chapter-2 Part IV :An advocate appearing for the prosecution of a criminal
trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The
suppression of material capable of establishment the innocence of the accused shall be scrupulously
avoided

Contd.
•Can a lawyer turn down a request for legal assistance,
if he lacks time, expertise, or interest in the matter:
•Rule11 of BCI Rules of Chapter-2 Part IV: Special circumstances may justify his
refusal to accept a particular brief
• Rule 8 of the proposed code of ethics: An Advocate shall accept only as many
briefs as he/she is sure he/she can attend to, and shall refrain from accepting
briefs in which he/she is likely not to be available owing to his/her
preoccupation in other matters.
•Can a lawyer refuse to appear after taking up a matter
or can a lawyer absent himself from certain hearing
without any reason after taking up a matter
•Rule 12 of BCI Rules of Chapter-2 Part IV : An advocate shall not ordinarily
withdraw from engagements, once accepted, without sufficient cause and
unless reasonable and sufficient notices is given to the client.

Duty of competence & diligence
•BCI Rules - Rule 15: It shall be the duty of an advocate
fearlessly to uphold the interests of his client by all fair
and honourable means without regard to any
unpleasant consequences to himself or any other.
Lawyer’s duty to ‘uphold client’s cases fearlessly’ would mean that
discharging his duties with ordinary and reasonable care, prudence,
diligence and independently. The lawyer is required to conduct her
client case with outmost of his skill and understanding. This requires use
accurate knowledge, legal skills, thoroughness of procedures and
preparation reasonably necessary for the representation. Accurate
knowledge will not just be limited to knowledge about law and court
procedures, but also general knowledge about policies of state and
contemporary society.

Duty of communication and honesty
• Full and frank disclosure (BCI- Rule 14)
• To of not act on instructions of any person other than his client or his authorised agents. (BCI-
Rule 19)
Communication of lawyers with some special categories of clients i.e. a minor, mentally
unsound and juvenile clients. (i.e. clients with diminished capacity)
What decisions can lawyers take for such clients? Is there a principal-agent
relationship in such cases limited?
Civil suits by or against minor or a mentally disabled person
• As per Indian law every civil suit or proceeding filed by or against a minor or mentally disabled person ‘shall be in her name’ by a ‘guardian’
or a ‘next friend’ of such suitors. Any person who is of sound mind and has attained majority may act as next friend of a minor or as his
guardian, provided that the interest of such person is not adverse to that of the minor. Where there is no other person fit and willing to act
as guardian for the suit, the Court may appoint any of its officers to be such guardian. Every application to the court on behalf of a minor or
a mentally unsound person shall be made by his next friend or by his guardian for the suit. See Order XXXII Rule 1, 3 and 15 of the Code of
Civil Procedure, 1908.
• See Order XXXII Rule 4 of the Code of Civil Procedure, 1908
• See Order XXXII Rule 5 of the Code of Civil Procedure, 1908
Representing a Juvenile:
• Section 46 of the Juvenile Justice (Care and Protection) Act, 2000 states that “Any competent authority before which a juvenile or the child
is brought under any of the provisions of this Act, may, whenever it so thinks fit, require any parent or guardian having the actual charge of
or control over the juvenile or the child to be present at any proceeding in respect of the juvenile or the child.”

Duty properly manage clients money
•To keep accounts of the client’s money
BCI Rules
• Rule 25: An advocate should keep accounts of the client’s money entrusted to him,
and the accounts should show the amounts received from the client or on his behalf,
the expenses incurred for him and the debits made on account of fees with
respective dates and all other necessary particulars.
• Rule 26: Where moneys are received from or on account of a client, the entries in
the accounts should contain a reference as to whether the amounts have been
received for fees or expenses and during the course of the proceeding, no advocates
shall, except with the consent in writing of the client concerned, be at liberty to
divert any portion of the expenses towards fees.
• Rule 27: Where any amount is received or given to him on behalf of his client, the
fact of such receipt must be intimated to the client, as early as possible.
• Rule 30: A copy of the client’s account shall be furnished to him on demand
provided the necessary copying charge is paid.

Duties of a lawyer to the client after the termination of
the lawyer-client relationship
• Rule 28: After the termination of the proceeding, the advocate shall be at
liberty to appropriate towards the settled fee due to him, any sum remaining
unexpended out of the amount paid or sent to him for expenses or any amount
that has come into his hands in that proceeding.
• Rule 29: Where the fee has been left unsettled, the advocate shall be entitled
to deduct, out of any moneys of the client remaining in his hands, at the
termination of the proceeding for which he had been engaged, the fee payable
under the rules of the Court, in force for the time being, or by then settled and
the balance, if any, shall be refunded to the client.
• Rule 33: An advocate who has, at any time, advised in connection with the
institution of a suit, appeal or other matter or has drawn pleadings, or acted for
a party, shall not act, appear or plead for the opposite party.

Duty to Protect Client Confidences
• The basic principle of confidentiality- Rule 24, Bar Council of India Rules:
– “An advocate shall not do anything whereby he abuses or takes advantage of the
confidence reposed in him by his client.”
• What is the policy behind the confidentiality rule?
The primary purpose of the confidentiality rule is to facilitate open communication between
lawyers and clients. Lawyers need to get accurate and complete information from their clients to
represent them well. If lawyers were not bound to protect clients' secrets, clients might be more
reluctant to share their secrets with their lawyers.
• Duty of confidentiality
– Protecting client confidences
– Protection of information relating to the representation of the client
– Protection of information if there is a reasonable prospect of harm to a client’s interest
– Justification and policy behind the duty of confidentiality—to enable a client to
communicate the truth to his lawyer without being afraid

The Council of the Institute of Chartered Accountants of India,
New Delhi vs. Mani S. Abraham (AIR2000Ker212)
The privileges mentioned in Section 126 and 129 are designed to secure the
clients' confidence in the secrecy of his communication. Any breach of the
confidence is a stigma not only on the Individual concerned, but also is likely
to have effect on credibility of the profession as a whole. That is why the
anxiety of the legislature to punish the erring individual. It is to be noted that
by breach of trust by a person entrusted with property or dominion over it,
action under criminal law can be taken. When considered in that background,
disclosure of information which would not have otherwise come within his
knowledge, but for his professional appointment, without consent of his chief
is an act of grave professional misconduct.
• Can lawyer’s talk hypothetically about a case so long as the identity of the client
is protected?
• Social and family conversation about a case whether amount to breach of the
duty?

Professors Hazard and Hodes, offer the following
advice about protecting client confidences:
“In functional terms, the line between permissible and
impermissible disclosure should probably be drawn at
the point of anonymity: a lawyer may talk shop if she is
virtually certain that the listeners could not ascertain
the identity of the client or the situation involved .... To
honor the rule of confidentiality, however, and to
maintain its strength, lawyers should exercise self-
restraint and resolve marginal cases in favor of
nondisclosure.”

Contd..
Important features of confidentiality
• survives the professional relationship, perpetually continuing after the
lawyer no longer acts for the client
• applies even when the client consulted a lawyer but did not retain his
services eventually
• duty extends not only to the overt disclosure of confidential
information, but its use
• the lawyer is obligated to actively protect information from disclosure
by mistake. He must take reasonable care to keep information
confidential.
• there is an implied or express authority for a lawyer to disclose
information if necessary to do so in interest of the client.
• it is also the lawyers duty to make the client aware of Duty of
Confidentiality and potentially applicable exceptions to it.

Duty to avoid conflict of interest
• Objective of this rule-
oclient’s have a right to independent counsel
oright to have a lawyer that's just thinking about their best interests
oconflict of interest violate client’s right of undivided loyalty of his
lawyer.
• Why does a lawyer need to identify and analyze these conflicts
oIf a lawyer takes a matter that raises a conflict without remedying it, a client
may feel betrayed. This can affect the professional reputation of the lawyer.
oDisqualified to represent or charged with violation of disciplinary rules
oLawyer might forfeit a fee for the conflicted work.

Why the study of conflicts is difficult
Concurrent conflicts-A concurrent conflict is a conflict between two
present obligations of a lawyer. It could involve a conflict between the
interests of two clients or a conflict of the lawyer's interests with a client's
interests. It could involve a conflict between one present client and one
prospective client.
Successive conflicts-These are conflicts that involve one present and one
past obligation, such as a conflict in a lawyer's duty to a present client and a
former client
Imputed conflicts- This is a conflict between an obligation of a lawyer to a
client and the obligation of another lawyer who is affiliated with the first
lawyer. When one lawyer in a firm who has a conflict "infects" the other
lawyers in the firm with this conflict.

Bar Council of India Rules on Conflict of Interest
Rule 13 Bar Council of India Rules
An advocate should not accept a brief or appear in a case in which he has
reason to believe that he will be a witness, and if being engaged in a case, it
becomes apparent that he is a witness on a material question of fact, he should
not continue to appear as an Advocate if he can retire without jeopardising his
client’s interests.
An advocate who has, at any time, advised in connection with the institution of
a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall
not act, appear or plead for the opposite party.

Determining conflicts
An advocate shall at the commencement of his engagement and during the
continuance thereof, make all such full and frank disclosure to his client
relating to his connection with the parties and any interest in or about the
controversy as are likely to affect his client’s judgement in either engaging
him or continuing the engagement.
• Clearly identify the client or clients, and determine whether each is a present
client or a former client
• Determine whether a conflict of interest exists
• Decide whether the lawyer is permitted to represent the client despite the
existence of a conflict (i.e., whether the conflict is consentable) and
• If so, consult with the clients affected under and obtain their informed consent
• Send written confirmation to the client of the informed consent.

Lawyers duties to Adversaries, Colleagues
• Duties to adversaries
• lawyer not to communicate or negotiate with any party
except through his lawyer. Rule 34, Bar Council of India
Rules.
• lawyer to carry out out all legitimate promises made to his
opposite party. Rule 35, Bar Council of India Rules.
• Duties to colleagues
• lawyer not to indulge in brief stealing
• not to enter appearance in any case in which there is already
a memo of appearance filed by other advocate except with
his consent. Rule 39,, Bar Council of India Rules.

Professional disciplinary proceedings
Section 35 (1) of the Advocates Act lays down the rule for advocates
liability and it states
“Where on receipt of a complaint or otherwise a State Bar Council has
reason to believe that any advocate on its roll has been guilty of
professional or other misconduct, it shall refer the case for disposal to
its disciplinary committee.”
Example:
• Professional Misconduct: CD appointed advocate AB and EF to file an
appeal on his behalf. They failed to file the appeal within time. AB
tampered with dates in certified copies of judgments to file time barred
appeals. EF helped in the commission of offence. Both advocates are
guilty of professional misconduct under the above rule.
• Other Misconduct: Consumption of alcohol and misbehavior in a public
place by an advocate may fall within the ambit of other misconduct.

What amounts to professional misconduct?
• The term ‘professional misconduct’ has not been defined anywhere in the Advocates Act.
According to Black's Law Dictionary "A Transgression of some established and definite rule of
action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper
or wrong behavior, it synonyms are misdemeanor, misdeed, misbehavior, delinquency,
impropriety, mismanagement, offense, but not negligence or carelessness". (Black's Law
Dictionary, sixth Edition at Page 999)
• Supreme Court in Bar Council of Maharashtra vs. M.V. Dabholkar has held that “The high
moral tone and the considerable public service the bar is associated with and its key role in
the developmental and dispute-processing activities and, above all, in the building up of a
just society and constitutional order has earned for it a monopoly to practise law and an
autonomy to regulate its own internal discipline.” ( 1975 ) 2 SCC 702
• Supreme Court in Noratanmal Chouraria vs. M.R. Murli defined the term ‘professional
misconduct’ as used in Section 35 as “...[b]reach of discipline, although it would not be
possible to lay down exhaustively as to what would constitute conduct and indiscipline,
which, however, is wide enough to include wrongful omission or commission whether done
or omitted to be done intentionally or unintentionally. It means, improper behavior
intentional wrong doing or deliberate violation of a rule of standard or behaviour...” ( 2004 ) 5
SCC 689

Professional Misconduct vis-a-vis Contempt of Court
• The ambit of contempt proceedings is much wider than proceedings for professional
misconduct as proceedings for professional misconduct can be carried out against the
advocate only whereas contempt proceedings can be initiated against members of bar
and bench both.
• In case of contempt of court there is no fixed procedure for initiation or punishment of
the accused/guilty and whereas proceedings in case of professional misconduct are to
be carried out as per the Advocates Act 1966 which lays down a detailed procedure for
the same.
• Criminal Procedure Code and Indian Evidence Act are not applicable in case of
proceedings for contempt of court as these proceedings are carried on the basis of the
principles of Natural Justice- objectivity and fairness respectively.
• In contempt of court proceedings cross examination is allowed in limited cases only.
For example in case of contempt proceedings against R.K Anand, Mr. R.K. Anand was
not allowed to cross examine Ponam Aggarwal who was in charge of the sting
operation. Whereas cross examination is an important aspect of proceedings for
professional misconduct.
• The punishment for contempt of court as envisaged in the Contempt of Court Act is also
different from the punishment for professional misconduct as envisaged under
Advocates Act, 1966.

Punishments for Professional Misconduct and Appeals
Section 35(3) provides that the disciplinary committee may make any of the following orders :-
…
(b) reprimand the advocate
(c) suspend the advocate from practice for such period as it may deem fit
(d) remove the name of the advocate from the State roll of advocates
(4) It is to be noted that where the advocate is suspended from practice under the aforesaid clause (c), he shall, during the period of
suspension , be debarred from practicing in any court or before any authority or person in India.
Section 37: Appeal to the Bar Council of India
(1) Any person aggrieved by an order of the disciplinary committee of the State Bar Council made Under Section 35 or the Advocate General of
the State may within 60 days of the date of the communication of the order to him , prefer an appeal to the Bar Council of India.
(2) Every such appeal shall be heard by the disciplinary committee of the BCI which may pass such order including order varying the
punishment awarded by the disciplinary committee of the State Bar Council as it deems fit.
(3) No order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of the BCI so as to prejudicially
affect the person aggrieved without giving him reasonable opportunity of being heard.
Section 38: Appeal to the Supreme Court
Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under Section 36 or Section 37 or the
Attorney General of India or the Advocate General of the state concerned, as the case may be , may within 60 days of the date on which the
order is communicated to him, prefer an appeal to the supreme court and 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.
However 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.

The effectiveness of the professional disciplinary mechanism
According to Prof. Baxi
The peer group disciplinary mechanism for regulating ethical standard and professional
responsibility introduced by the Advocates Act has not been very effective in articulating
the code of ethics and enforcing it in judicious manner.
In the opinion of Ipshita Sengupta
“Despite the notional accommodation of care thinking in the existing rules and standards of
professional conduct of lawyers in India, we witness blatant disregard for the rules by legal
practitioners, mainly due to the lack of a strong accountability framework to initiate
disciplinary action in cases of professional misconduct.”
Supreme Court’s observation in
“Legal profession being the most important component of justice delivery system, it must
continue to perform its significant role and regulatory mechanism and should not be seen to
be wanting in taking prompt action against any malpractice. We have noticed the inaction
of the Bar Council of Uttar Pradesh as well as the Bar Council of India inspite of direction
in the impugned order of the High Court and inspite of notice to the Bar Council of India
by this Court…Thus there appears to be urgent need to review the provisions of the
Advocates Act dealing with regulatory mechanism for the legal profession and other
incidental issues, in consultation with all concerned.”
Mahipal Singh Rana vs State of U.P (2016) 8 SCC 335

Law Commission of India 226th Report
• The 266th report is significant as it acknowledges before the general public
the various shortcomings and limitations of the Indian regulatory system for
legal profession
• Its recommendations for change includes
 defining “professional misconduct”
 expanding the composition of the BCI and SBCs to make them more representative
of the overall interests of the legal profession
 revising the composition of the disciplinary committee to include a judicial member
 extending the scope of pre-enrolment disqualification as well as post-enrolment
removal of advocates’ names,
 increasing the quantum of fines and compensation payments in cases of professional
misconduct,
 extending the accountability of bar council office-bearers by constituting a Special
Public Grievance Redressal Committee to prevent corruption and the abuse of power.

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