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Filing a Complaint against an Advocate - The Procedure

A complaint can be filed against an advocate in case of misconduct by the advocate. Section 35(1) of the Advocates Act, 1961 provides that the State Bar Council on having received any complaint or otherwise and having 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. Section 6(d) also mandates that it is the function of the State Bar Councils to entertain and determine cases of misconduct against advocates on its roll.

While misconduct has not been defined anywhere in the statute, it is an inclusive definition and the Bar Council of India through the Bar Council of India Rules as well as the Rules on Professional Standards notified by the Bar Council of India and mentioned in Chapter II, Part VI of the Bar Council of India Rules, empowered under under Section 49(1)(c) of the Advocates Act, 1961.

Predominantly, a complaint may be filed under an advocate for fraud, misrepresentation, as well as non-revelation of conflict of interests. Further the Rules on an Advocate's Duty towards the Client has to be adhered to by the advocate, failing which a complaint may be lodged against him / her.

These rules state:
  1. In the courts or tribunals, or before any other authority in or before which he wishes to practise, an advocate is required to accept any brief
  2. An advocate shall not typically withdraw from serving a client after agreeing to do so, unless there is good reason and the client is given reasonable and ample notice.
  3. An advocate should give full and candid disclosure to his client about his connection with the parties and any interest in or about the case that is likely to influence his client's decision to employ him or continue the engagement at the outset and during the engagement.
  4. It is an advocate's obligation to fearlessly defend his client's interests by all fair and honourable means.
  5. An advocate representing the prosecution in a criminal trial should conduct the proceedings in such a way that the innocent are not convicted.
  6. An advocate should not, in any way, directly or indirectly, divulge his client's correspondence to him. He also agrees not to reveal the guidance and legal advice that he provided during the hearings. He is, nevertheless, required to reveal if it violates Section 126 of the Indian Evidence Act of 1872.
As such, failing these, a complaint may be lodged against him.

The procedure to be followed by a disciplinary committee after receipt of the complaint are:
  1. First there is receipt of a complaint against an advocate that is in a similar format of a petition as per the Civil Procedure Code, 1908. If the complaint is in any language other than English, and the complaint lies to the disciplinary committee of the Bar Council of India, it has to be translated to English by the State Bar Council.
     
  2. Before forwarding a complaint for misconduct of an advocate to one of its Disciplinary Committees, the Bar Council may demand a complainant to provide additional and better details, or may request comments from the advocate complained about, within a time limit set by it. When the Bar Council refers a complaint to a disciplinary committee, the Registrar should promptly notify the advocate.

    The notice will request that the concerned advocate show cause on the complaint brought against him within a certain time frame, as well as submit a statement of defence, documents, and affidavits in support of the defence.
     
  3. The date, time, and location of the inquiry will be determined by the Chairman of the Disciplinary Committee. This date should not be more than thirty days after receiving the reference. The Registrar must notify the complainant or other person aggrieved, the counsel involved, and the Attorney General or the Additional Solicitor General of India or the Advocate General of the date, hour, and place of the hearing. The parties may attend in person or through an advocate who must file a vakalatnama.
     
  4. If, notwithstanding delivery of notice, either the complainant or the respondent fails to appear before the Disciplinary Committee in an enquiry on a complaint received, the Committee may continue ex-parte or direct that new notice be issued.
     
  5. Any such direction for proceeding ex-parte may be set aside if adequate cause is established in an application supported by an affidavit filed within 60 days of the ex-parte order's issuance.
     
  6. Unless the committee determines differently, the matters can be heard and decided on documents and affidavits. The Disciplinary Committee will hear from the Attorney General, the Additional Solicitor General of India, or the Advocate General, as appropriate.
     
  7. Thereafter the disciplinary committee shall pass its judgement.

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