Procedure for Complaints Against Advocates

Advocates are considered as the friend of society, as they fight to protect human rights of an individual (in particular) and of society as a whole (in general). But while doing their duty, they are expected to maintain their code of ethics and follow the prescribed provisions. In case of failing to follow the prescribed provisions and code of ethics that may cause potential harm to their client, the aggrieved party (preferably their client) may file a complaint against them.

What is the Statutory Framework of Filing Complaints Against an Advocate?

The Advocates Act of 1961 provides a principal legislative framework that defines the rights, duties, and disciplinary measures that all advocates have to follow. However, in case of finding guilty of any misconduct or misbehavior, the disciplinary action can be taken against them.

Section 35 of Advocates Act prescribes the punishment for their misconduct. Further, the Act gives power to Bar Council of India and State Bar Councils to form a Disciplinary Committee to initiate disciplinary action against an advocate.

What is the Procedure of Filing a Complaint Against an Advocate?

Filing a written complaint against an advocate is a complex task that involves some defined steps. The aggrieved party or the person whose interest or right is violated must follow the following steps to file a formal complaint against the advocate who violated their interest −

• Documentation − Before filing a complaint, complainant needs to collect all relevant documents, correspondence, or other such evidence related to the alleged misconduct or issue. This may include contracts, communication records, or any other supporting materials.

• Addressing the Proper Ground/s − The basis or ground of complaint must be addressed properly that may include professional misconduct, mismanagement of their funds, negligence, or ethical violations. Need to provide detailed information to support the credibility and effectiveness of the complaint.

• Determining an Appropriate Forum − Any such complaint can be filled to the respective State Bar Council. So, complainant needs to identify an appropriate State Bar Council under whose jurisdiction, the advocate in question practicing the law. In other words, each state or region may have its own Bar Council, and complaints are generally filed with the Bar Council where the advocate practices.

• Complaint Form Submission − Complete the prescribed complaint form provided by the respective Bar Council. Include all necessary details, supporting documents, and a precise narrative of the alleged misconduct. And, finally submit the complaint.

• Submission of Fees − State Bar Council may require the payment of a nominal fee along with the complaint. Complainants should adhere to any fee requirements specified by the Bar Council of India rules.

• Acknowledgment and Tracking − After submitting the complaint, the respective State Bar Council usually provides an acknowledgment receipt. Complainants can use this receipt to track the status of their complaint throughout the resolution process.

The Procedures After Filling the Complaint

Once the complaint is filled, the respective State Bar Council will constitute a disciplinary committee to initiate the inquiry and investigation process. This process includes detailed examination of the complaint to determine the validity of the allegations and establishing a factual basis for further action, which may include −

• Appointment of Investigative Body − The Bar Council responsible for handling the complaint appoints an investigative body, which usually consists of committee members, legal experts, or individuals with relevant expertise.

• Notice to the Advocate − The advocate against whom the complaint has been filed is duly notified of the allegations by the Registrar. This notice that includes details of the specific charges asks the concerned advocate to show cause within a specified date, on the complaint made against him and to submit the statement of defence, documents and affidavits in support of the defence. Likewise, provides an opportunity to present a defense and respond to the accusations on timely basis.

• Gathering Evidence − The investigative body sincerely and systematically collects evidence related to the complaint. This may involve reviewing documents, interviewing witnesses, and considering any other relevant information that puts light on the matter.

• Appearance and Witness Testimonies − During the hearing procedure, parties can appear in person or may be represented by an advocate. Secondly, witnesses, if any, are called upon to provide testimonies regarding the alleged misconduct. Their testimony helps in understanding the overall circumstances surrounding the complaint.

• Advocate's Defense − The advocate under investigation is given proper opportunity to present their defense. He or she may submit counter-evidence, arguments, or explanations to address the charges against them.

• Proceedings and Exhibits − The Disciplinary Committee shall hear the Attorney General or the Additional Solicitor General of India (in case of Union Territory) or the Advocate General (in case of state), as the case may be or their advocate and parties or their advocates.

• Final Report − Upon completion of the investigation, the investigative body submits a comprehensive final report to the Bar Council. This report includes findings, conclusions, and recommendations based on the evidence and testimonies collected during the investigation and hearing.

• Decision by Bar Council − After receiving the final report, the Bar Council reviews it and depending on the severity of the findings, the council may impose disciplinary measures as outlined in the relevant regulations.

Disciplinary Actions and Final Decision

Depending upon the severity of final report, council may −

• Warn or Reprimand − In cases where the misconduct is moderately minor or the advocate's first offense, the Bar Council may dismiss the case by giving a simple warning or reprimand.

• Fine − Along with the warning or reprimand, Bar Council has the authority to levy fines on advocates found guilty of professional misconduct. Though the amount is not defined, it may vary based on the nature and severity of the violation.

• Suspension − In case of relatively higher degree of misconduct, advocate in question may face suspension from practicing law for a specified period. However, the duration of suspension depends on the gravity of the misconduct. During the suspension, the advocate is temporarily barred from engaging in legal activities.

• Cancellation of Enrollment − In case of severe misconduct, the Council may decide to cancel or revoke the advocate's enrollment permanently. This results in the advocate losing the right to practice law forever. Because of this reason, cancellation is characteristically reserved for severe and repeated violations.

Appeal

In case, if any of the parties dissatisfied with the Council’s decision may file an appeal to review the disciplinary decision given by the State Bar Council. But such appeal has to be made within 60 days of pronouncement of the decision.

The appeal can be made to Bar Council of India (BCI). The Disciplinary Committee of BCI will review the State Bar Council’s decision and based on its finding will provide its own decision.

However, if any of the parties still not satisfied with the decision given by the Disciplinary Committee of BCI, then they can file an appeal to the Supreme Court of India within 60 days of its pronouncement.

Likewise, the appeal process serves as an important safeguard to protect advocates from potential miscarriages of justice. Further, it also rectifies any errors or oversights that may have occurred during the initial disciplinary proceedings. Moreover, it contributes to the overall fairness and transparency of the legal disciplinary framework.

Case Studies

New India Assurance Co. Ltd. v. A.K. Saxena AIR [2004] − In this case, the respondent A. K. Saxena was an advocate. And, a dispute arose with his client New India Assurance because of which his client demanded to return all the files related to his case. Advocate Saxena was ready to return the files, but only after getting his fees fully paid. Likewise, the client filed a complaint claiming the return of his files. The court held that it is open for the advocate to file a recovery suit against his client for the fees to be paid but retaining the client’s files comes under the breach of professional duty.

This case is fully covered by a decision of this Court in R.D. Saxena V. Balram Prasad Sharma, wherein this Court has held that advocates have no lien over the papers of their clients. It is held that at the most the advocate may resort to Legal remedies for unpaid remuneration. But it is his professional duty to return his client’s file.

Conclusion

To maintain the social ethics, standard, and profession’s integrity, the provision of complaint against an advocate is an indispensable tool. The provision not only force advocates to practice law with all integrity and good behavior, but also protects the rights and concerns of clients. However, at the same time, it is also necessary to prevent frivolous complaints against advocates, as any such false and baseless complaint can discredit an advocate’s reputation. Likewise, various measures and strategies have been implemented within the legal regulatory framework in India to discourage and address baseless allegations.

Frequently Asked Questions

Q1.Who can file a complaint against an advocate in India?

Ans. Any individual who has interacted with or observed the misconduct of an advocate, including clients, other advocates, or members of the public, can file a complaint.

Q2.On what grounds can a complaint be filed against an advocate?

Ans. Complaints can be filed against an advocate on various grounds, such as professional misconduct, ethical violations, misappropriation of funds, negligence, breach of confidentiality, or violations of the Advocates Act or professional code of ethics.

Q3.Where should a complaint against an advocate be filed?

Ans. Primarily, complaints should be filed with the State Bar Council where the advocate (in question) practices law.

Q4.Can a complainant seek legal representation during the proceedings?

Ans. Yes. However, it is up to the complainant that whether he wants to represent himself or to hire a legal representation during the proceedings. Legal representation ensures that the complainant's interests are effectively presented.

Q5.What happens after a complaint is filed with the Bar Council?

Ans. The Bar Council constitutes a disciplinary committee and initiates a preliminary inquiry to determine the prima facie merit of the complaint. If the complaint is found valid, formal disciplinary proceedings may be initiated.

Q6.Is there a time limit for filing a complaint against an advocate?

Ans. Prima facie every civil suit has some time limit; however, in this case, as such there is no specified time limit, but it is advisable to file a complaint as soon as possible after the alleged misconduct, as delayed complaints may face challenges in gathering evidence.

Q7.Can a complainant appeal the decision of the Bar Council?

Ans. Yes, a complainant or the advocate (against whom the complaint is filed) may appeal the decision of the Bar Council to the appropriate appellate authority, typically the Bar Council of India and then the Supreme Court.