Remedies Available to an Advocate Against Punishment for Misconduct

There are following remedies available to advocate who was punished for professional misconduct

1. Appeal to the Bar Council of India (Section 37 of the Advocates Act)

Who can Appeal?

• Any person aggrieved by an order of the State Bar Council's disciplinary committee under Section 35.
• The Advocate General of the State.

Time Limit: Within 60 days of receiving the order.

Procedure for Filing an Appeal (as per Rules framed by BCI)

Form of Appeal: Must be a memorandum.

Language: English, with a translated copy if submitted in another language.

Parties: Only those involved in the original proceedings. (In case of the complainant's death, legal representatives become parties).

Filing the Appeal:

• In person at the BCI office.
• By registered post with acknowledgment due.

May be admitted after the deadline with a valid reason and affidavit supporting the delay.

Contents of Memorandum of Appeal (Rule 21)

• Authenticated/certified copy of the order appealed against, signed by the Disciplinary Committee Registrar.
• Five additional copies of the memorandum and order (one respondent) or more copies for additional respondents (all certified true copies).
• Prescribed fee in cash.

Hearing the Appeal (Rule 23-25)

• Disciplinary Committee Chairman sets the date, time, and location.
• Appellant files six typed sets of documents for the committee and parties:
  • Complaint and advocate's defense statement.
  • Oral and documentary evidence.
  • Other relevant papers.
  • Respondent may also file relevant documents upon request.
  • Registrar notifies parties of the hearing date, time, and location.
  • A copy of the memorandum is sent to the respondent with the notice of appeal.

Withdrawal and Abatement (Rule 26): Appeals cannot be withdrawn due to settlement or compromise.The appeal abates upon the advocate's death (as far as they are concerned).

Powers of the Disciplinary Committee of BCI (Rule 30A):Have all the powers of a Civil Court or Court of Appeal under the Civil Procedure Code  (CPC).

Communication of Order (Rule 31):

• The order disposing of the appeal is communicated to the parties.
• The order date is when it's received by the BCI office after being signed by all  committee members.

Possible Orders on Appeal: The BCI's disciplinary committee can pass any order they deem fit, including modifying the punishment awarded by the State Bar Council's committee. However, they cannot vary the order in a way that prejudices the aggrieved person without providing them a chance to be heard.

Confidentiality (Rule 33): All proceedings before the Disciplinary Committee are held in camera (private).

2. Appeal to the Supreme Court (Section 38 of the Advocates Act)

Who Can Appeal?

• Any person aggrieved by an order of the BCI's disciplinary committee under Section 36 or 37.
• The Attorney-General of India or the Advocate-General of the State.

Time Limit: Within 60 days of receiving the order.

Scope of Review by Supreme Court: The Supreme Court generally won't interfere with concurrent findings of fact by:

• Disciplinary Committee of the BCI.
• State Bar Council.

Exceptions may occur if the findings are based on:

• No evidence.
• Mere conjectures or unwarranted inferences.

The Supreme Court defers to the "peers" who tried the lawyer and won't overturn findings simply because they might reach a different conclusion upon re-evaluating the evidence.

Landmark Cases

• V.C. Rangadurai v. D. Gopalan & Ors.: Established the Supreme Court's limited role in reviewing concurrent findings.
• Supreme Court Bar Association v. Union of India: Differentiated the Court's power under the Contempt of Courts Act (suspending licenses) and its appellate power under the Advocates Act (suspending licenses).
• Rajendra Pai v. Alex Fernandes and Ors.: Demonstrated the Court's potential to intervene in extreme cases, reducing punishment from removal to a 7-year suspension.

Stay of Order (Section 40):An appeal doesn't automatically stay the original order. The BCI's Disciplinary Committee or the Supreme Court can grant a stay for sufficient cause and set terms/conditions. An application for a stay requires an affidavit, fee, and copies for all respondents.

3. Review of Orders by Disciplinary Committee (Section 44 & BCI Rules)

Power to Review Orders (Section 44)

The Advocates Act (Section 44) empowers a Bar Council's Disciplinary Committee to review its own orders within 60 days, under these conditions:

Initiation: The review can be initiated by the committee itself (suo motu) or upon an application.

BCI Approval: The State Bar Council's reviewed order requires approval by the Bar Council of India (BCI) to take effect.

BCI Rules for Review Proceedings (Chapter II, Part VII):The BCI has established detailed procedures for review applications through its rules:

Application for Review (Rule 1-3):

• Form: A petition signed and supported by an affidavit.
• Filing: Within 60 days of the order sought to be reviewed.
• Fee: Must be accompanied by the prescribed fee.
• Content:
  • Include a certified copy of the order being challenged.
  • Five additional copies of the application, affidavit, and order.
  • If multiple respondents, provide additional copies for each.
  • Clearly state the grounds for review.
  • Mention any related proceedings and their outcomes.

Proceedings (Rule 4-5):

Response by Committee:The committee may summarily reject the application. If not summarily rejected, or if initiated suo motu, the committee will notify:

Parties involved:

• Advocate-General (concerned State).
• Additional Solicitor-General of India (for Delhi Bar Council).

Hearing and Decision: After the hearing, the committee can:

• Dismiss the application.
• Allow the review and send a copy of the order with relevant records to the BCI for approval.

BCI Approval:The BCI can either approve or reject the State Bar Council's reviewed order.

Communication of Decision:The State Bar Council will inform the parties of the BCI's decision:

• If approved, the reviewed order is communicated.
• If not approved, the original order remains in place.