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Rahul Kumar

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Professional Misconduct?

Posted On: 1 Dec, 2015 Others में

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The Definition of Professional or other Misconduct by an advocate has not been provided under the Advocates Act,1961.A person approached to me seeking assistance as to how he can file a complaint against his former advocate for his conduct of becoming advocate of opposite party in his another case and even being advocate for his bail petition,now filing application for discharing of one surety of his bail bond.
My observation produced before him is reproduced below-
Section 35 of the Advocates Act 1961 provides punishment against
advocates for professional or other misconduct for which punishment
of revocking licence,suspension from practice of law for a particular period etc may be awarded by the State Bar Council or the Bar Council Of India,as the case may be.
Definition of professional or other misconduct has not been provided
under section 35 of this act.So it is too difficult for the Bar
Councils and, if appeal is preffered to the Supreme Court,then for
the Supreme Court, to decide which act is professional or other
misconduct or not….
However many judgements have been pronounced against misconduct of advocates awarding punishment against advocates.But not a single judgement similar to issues involved in your both cases has been pronounced till now.So,It is very difficult task to decide whether the conducts of your former advocates fall under professional or other
misconduct or not…
Now let me examine the issues involved in your both cases.
Bailor,who is called surety in law,has submitted application for the discharge of bail bond under section 444 of the CrPC.It must be
observed that the lawyer representing accused also represents bailor.Therefore,he is the advocate not only of the accused,but also of the bailor.Considering above,i find that no misconduct has been
committed by the lawyer if he submits application on behalf of the bailor for discharge of bail bond.
Now taking note on your another case that the same lawyer who fought your one case under section 138 of the NI Act 1888,now fighting case of protest petition against you in your case of section 307 IPC.
Section 303 of the CrPC provides prerogative to a person to represent himself by the lawyer of his choice.This prerogative doesn’t bar that person to be represented even by such lawyer who was formely your lawyer in your another case.Also,nothing is written in the Advocates
Act 1961 which can bar an advocate to not fight against such person,on whose behalf he was formely fighting in another case.
I am of the considered view that profession of law practice can’t be
confined within a limitation of fighting case always of those on whose behalf another case has been formely fought or not fighting case against those on whose behalf formely another case has been fought.This is against the principle of legal profession and also the violative of Article 19(1)(g) of an advocate which provides
fundamental right of freedom of profession,trade and occupation.
Hence, i don’t find professional or other misconduct committed by your former advocate in your both cases .
It would obviously be professional misconduct if the advocate would
have fought same case firstly on your behalf,thereafter would have
fought same case against you excepting the cases relating to your
bailor,your witnesses etc against you.It so would be professional misconduct because an advocate is supposed to maintain the secrecy and
privacy of his client and to keep the evidences , facts and legal
planning of his client secret and secured and same is violated and
becomes disclosed if the advocate comes in touch of the opposite party in the same case.



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