When Does Negligence By Advocate Amount To Professional Misconduct
Author: Ms. Gayatri sahu, ITM University, Raipur.
Professional misconduct means wrong or improper conduct. Misconduct means an act accomplished willfully with an incorrect purpose by the humans engaged within the profession. Any behavior of an advocate in violation of professional ethics for his egocentric ends.
Professional misconduct is a dereliction of obligation through an advocate towards his client or case. Any Professional negligence, Misappropriation, Changing sides, Contempt of court and improper behavior before magistrate, furnishing false information, Giving improper advice, Misleading the clients in court, Not speaking the truth, Disowning allegiance to the court, Moving application without informing that a similar application has been rejected by another authority, suggesting to bribe the court officials, forcing the prosecution witness not to say the truth. All these are the misconduct in expert potential by an advocate.
Negligence should be coupled with moral turpitude or delinquency to be misconduct.
The Constitution Bench of Supreme Court in the case In the matter of ‘P’ an Advocate AIR 1963 SC 1313, drew a distinction between ‘negligence’ and ‘gross negligence’.
The key takeaways from that case, where the Court was dealing with the alleged misconduct on the part of an Advocate on Record, are :
- The error of judgment cannot be completely eliminated in all human affairs.
- Mere negligence will not by itself mean that the advocate has committed ‘professional misconduct’.
- For negligence to become ‘misconduct’ it must involve moral turpitude or delinquency. The expression ‘moral turpitude or delinquency’ must receive a wide construction.
- Wherever the conduct of the Advocate is contrary to honesty, or opposed to good morals or is unethical, it can be held to involve moral turpitude.
- A willful and callous disregard for the interests of a client may, in a proper case, be characterized as conduct unbefitting an Advocate.
As like, every profession has a different dimension, advocacy has a dynamic dimension. Law makes a superb wife however a poor mistress. You need to be married to it. You can’t play with it. In case you work hard and when you have the competencies, you may be at the pinnacle. And on the pinnacle, the law is the maximum profitable profession. And there may be no loss of life of money supplied you set up yourself in the profession.
The legal profession in India is governed by ‘The Advocates Act, 1961’. It far a self-contained Code of Law relating to the legal profession and this Act extends to the whole of India. This is an Act to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and Bar Council of India. Persons enrolled as advocates with any Bar Council are entitled to exercise the career of law at some stage throughout the country. No individual may be enrolled with more than one Bar Council. The Bar Councils have disciplinary jurisdiction over advocates on their rolls, but he is subject to appeal to the Bar Council of India and a further right of appeal o the Supreme Court of India.
It’s very tough to get positive about the credibility of a legal profession, only through a few references from a few acquaintances we will depend on.
An Advocate can be penalized for professional and other misconduct. when, the victim has suffered any damage, due to an advocate’s misconduct. Advocates aren’t above regulation. An affected man or woman can resort to a grievance with Bar Council of the state which is the governing body for legal professionals. Also, Civil Cases and Criminal proceedings might be mooted relying upon the character of misconduct. However, mere non-pleasure of a client with the services of an Advocate who has implemented reasonable talents in his work could no longer tantamount to misconduct.
On 21st Sept, 2012 CBI v K Narayana Rao (2012) 9 SCC 512) the division bench of supreme court observed that a lawyer does not tell his client that he shall win the case in all circumstances. Likewise, a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings, viz., either he was not possessed of the requisite skill which he professed to have, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.
Relying upon the judgment in (Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1) this Court laid down the standard to be applied to judging. To determine whether a professional has been negligent or not, she has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which she practices.
Further, relying upon the judgment in P D Khandekar v Bar Council of Maharashtra and Goa AIR 1984 SC 110 this court held that”..there is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.