14 February 2010
my company has filed two matters against one party. one is civil matter and another is criminal u/s. 138 of n. i. act. criminal matter filed in 2002 and civil filed in 2005. in civil matter after filing an affidavit of service the matter was adjourn for ex parte as the defendant has failed to file their apperance and written statement. after that the advocate who is appeared in both the matters has taken adjournments only. now when the plff. co joined one other adv. with the previous adv. then after filing of the affidavit of ex-parte evidence, one adv. appeared on behalf of defendant and placed an application for seeking the permission to file written statement. after two dates sudden on the third date the said adv. for deft. has filed a pursis and withdrawn his apperance. in his pursis he stated that the plantif's adv. approached him and told him to appear in the matter on behalf of the Defendqant. he also stated in his pursis that the plff.'s adv. told him that the defendant told him to find an advocate for them to appear and contest the matter and he gave the blank signed and stampd vakalatnama of defendant to him stating that he will collect all the papers and give. but till the date he has not receive any material instruction from the defendant or the said adv as well as he also is not receive any papers hence he is withdrawing his apperance.
under the circumstance we wants to take the steps against the said advocate who has taken only adjournments in criminal matter and done misconduct against the professional ethics.of an advocate
1)can we move before the barcouncill? under which section we have to file complaint?
2)can we file any complaint before the consumer forum? under which section?
3)can we file any other dispute / complaint / suit against the said advocate? under which provision of law?
4)is it necessary to give prior notice before filinf any of the proceeding mentioned hereinabove at no. 1,2 or 3?
14 February 2010
Chapter V, Section 35, 36, 36-A and 36-B of the Advocates Act, 1961 make provision for such complaints.
35. (1) Where on receipt of a complaint or otherwise a State Bar Council has 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.
(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council.
(2) The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate- General of the State.
(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:-- (a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates. (4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India.
(5) Where any notice is issued to the Advocate-General under subsection (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.
Explanation: In this section, section 37 and section 38, the expressions "Advocate-General" and "Advocate-General of the State" shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General of India.
36. (1) Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
(2) Notwithstanding anything contained in this Chapter, the disciplinary committee of the Bar Council of India may, either of its own motion or on a report by any State Bar Council or on an application made to it by any person interested], withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same.
(3) The disciplinary committee of the Bar Council of India, in disposing of any case under this section, shall observe, so far as may be, the procedure laid down in section 35, the references to the Advocate-General in that section being construed as references to the Attorney-General of India.
(4) In disposing of any proceedings under this section the disciplinary committee of the Bar Council of India may make any order which the disciplinary committee of a State Bar Council can make under sub-section (3) of section 35, and where any proceedings have been withdrawn for inquiry before the disciplinary committee of the Bar Council of India, the State Bar Council concerned shall give effect to any such order.
36A. Whenever in respect of any proceedings under section 35 or section 36, a disciplinary committee of the State Bar Council or a disciplinary committee of the Bar Council of India ceases to exercise jurisdiction and is succeeded by another committee which has and exercises jurisdiction, the disciplinary committee of the State Bar Council or the disciplinary committee of the Bar Council of India, as the case may be, so succeeding may continue the proceedings from the stage at which the proceedings were so left by its predecessor committee.
36B. (1) The disciplinary committee of a State Bar Council shall dispose of the complaint received by it under section 35 expeditiously and in each case the proceedings shall be concluded within a period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council, as the case may be, failing which such proceedings shall stand transferred to the Bar Council of India which may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-section (2) of section 36.
(2) Notwithstanding anything contained in sub-section (1), where on the commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), any proceedings in respect of any disciplinary matter against an advocate is pending before the disciplinary committee of a State Bar Council, that disciplinary committee of the State Bar Council shall dispose of the same within a period of six months from the date of such commencement or within a period of one year from the date of the receipt of the complaint or, as the case may be, the date of initiation of the proceedings at the instance of the State Bar Council, whichever is later, failing which such proceedings shall stand transferred to the Bar Council of India for disposal under subsection (1).
DISCIPLINARY PROCEEDINGS, COMPLAINTS, REVISIONS, REVIEWS etc. have been provided in Part VII, CHAPTER-I of the Bar Council of India Rules:
Complaints against Advocates and Procedure to be followed by Disciplinary Committees of the State Bar Council and the Bar Council of India (Rules under Section 49 (1) (f) of the Act)
A. Complaint and Enquiry under Section 35, 36 and 36B of the Act 1. (1) A complaint against an advocate shall be in the form of a petition duly signed and verified as required under the Code of Civil Procedure. The complaint could be filed in English or in Hindi or in regional language where the language has been declared to be a state language and in case the complaint is in Hindi or in any other regional language, the State Bar Council shall translate the complaint in English whenever a disciplinary matter is sent to the Bar Council of India under the Advocates Act. Every complaint shall be accompanied by the fees as prescribed in the rules framed under Section 49 (h) of the Act.
(2) The Secretary of the Bar Council may require the complainant to pay the prescribed fees if not paid, to remove any defects and call for such particulars or copies of the complaint or other documents as may be considered necessary.
(3) On a complaint being found to be in order, it shall be registered and placed before the Bar Council for such order as it may deem fit to pass.
(4) No matter taken up by the State Bar Council suo motu or arising on a complaint made under Section 35 of the Act shall be dropped solely by reason of its having been withdrawn, settled or otherwise compromised, or that the complainant does not want proceed with the enquiry.
2. Before referring a complaint under section 35 (1) of the Act to one of its Disciplinary Committees to be specified by it, the Bar Council may require a complainant to furnish within a time to be fixed by it, further and better particulars and may also call for the comments from the advocate complained against.
3. (1) After a complaint has been referred to a Disciplinary Committee by the Bar Council, the Registrar shall expeditiously send a notice to the advocate concerned requiring him 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 such defence and further informing him that in case of his non-appearance on the date of hearing fixed, the matter shall be heard and determined in his absence.
Explanation : Appearance includes, unless otherwise directed, appearance by an advocate or through duly authorised representative. (2) If the Disciplinary Committee requires or permits, a complainant may file a replication within such time as may be fixed by the Committee.
4. The Chairman of the Disciplinary Committee shall fix the date, hour and place of the enquiry which shall not ordinarily be later than thirty days from the receipt of the reference. The Registrar shall give notice of such date, hour and place to the complaintant or other person aggrieved, the advocate concerned and the Attorney General or the Additional Solicitor General of India or the Advocate General as the case may be, and shall also serve on them copies of the complaint and such other documents mentioned in Rule 24 of this Chapter as the Chairman of the Committee may direct at least ten days before the date fixed for the enquiry.
5. (1) The notices referred to in this Chapter shall subject to necessary modification, be in Form Nos. E-1 and E-2 be sent to the advocates appearing for the parties. Notice to a party not appearing by the advocate shall be sent to the address as furnished in the complaint or in the grounds of appeal. The cost of the notices shall be borne by the complainant unless the Disciplinary Committee otherwise directs.
(2) The notices may be sent ordinarily through messenger or by registered post acknowledgement due and served on the advocate or the party concerned or his agent or other person as provided for in Order V of the Civil Procedure Code.
(3) Notice may also, if so directed by the Committee be sent for service through any Civil Court as provided for under Section 42 (3) of the Advocates Act.
(4) Where the notice sent to any party cannot be served as aforesaid it may be served by affixing a copy thereof in some conspicuous place in the office of the Bar Council, and also upon some conspicuous part of the house (if any) in which the party concerned is known to have last resided or had his office, or in such other manner as the Committee thinks fit. Such service shall be deemed to be sufficient service.
(5) Payment of bills and/or charges for summons to witness etc. shall be in accordance with the rules under Section 49 (h) of the Act.
6. (1) The parties can appear in person or by an advocate who should file a vakalatnama giving the name of the Bar Council in which he is enrolled, his residential address, telephone number if any, and his address for service of notices. A Senior Advocate is entitled to appear with another advocate who has filed a vakalatnama.
(2) The Bar Council or its Disciplinary Committee may at any stage of a proceeding appoint an advocate to appear as Amicus Curiae. Such advocate may be paid such fee as the Council or the Committee may decide.
(3) Excepting when the Committee has otherwise directed, service on the advocate shall be deemed to be sufficient service on the parties concerned, even if copies of the notices are in addition sent to the parties, whether the parties have or have not been served.
(4) Unless otherwise indicated, where more than one Advocate appears for the same party, it is sufficient to serve the notice on any of them.
7. (1) If in an enquiry on a complaint received, either the complainant or the respondent does not appear before the Disciplinary Committee in spite of service of notice, the Committee may proceed ex-parte or direct fresh notice to be served.
(2) Any such order for proceeding ex-parte may be set aside on sufficient cause being shown, when an application is made supported by an affidavit, within 60 days of the passing of the ex-parte order.
Explanation : The provisions of Section 5 of the Limitation Act, 1963 shall apply to this sub-rule.
8. (1) The Disciplinary Committee shall hear the Attorney General or the Additional Solicitor General of India or the Advocate General, as the case may be or their advocate and parties or their advocates, if they desire to be heard and determine the matter on documents and affidavits unless it is of the opinion that it should be in the interest of justice to permit cross examination of the deponents or to take oral evidence, in which case the procedure for the trial of civil suits shall as far as possible be followed.
(2) On every document admitted in evidence, the following endorsement shall be made which shall be signed by the Chairman or any member of the Committee :-
The Disciplinary Committee of Bar Council of ..................... Exhibit No .............................. Date of Document.............................. Produced by ................................. Date ..................................... Signature of .................
(3) The exhibits shall be marked as follows :-
(a) Those of the complainant as C1,C2, etc. (b) Those of Respondent as R1, R2,etc. (c) Those of Disciplinary Committee as D1, D2, etc.
(4) The Disciplinary Committee may at any stage direct the parties or their advocates to furnish such further and better particulars as it considers necessary.
9. (1) Evidence given before the Disciplinary Committee shall be recorded preferably in English by any member of the Committee or any other person authorised by the Committee. The evidence so recorded shall be signed by the Chairman or if the Chairman is not there when the evidence is recorded by any member of the Committee.
(2) Whenever the record of a case decided by the State Bar Council or its Disciplinary Committee in which evidence has been recorded in a language other than English is required to be sent to the Bar Council of India or its Disciplinary Committee, a translation thereof in English made by a person nominated by Committee or Registrar certifying the same to be true copy shall also be sent.
10. (1) Every Disciplinary Committee shall make a record of its day to day proceedings.
(2) The Registrar of the Disciplinary Committee shall maintain a case diary setting out shortly in order of date, all relevant information concerning the date of filing, the date for hearing and despatch and service of the notices on the parties or the Advocates or the Attorney General or the Additional Solicitor General or the advocate General as the case may be, of statements or petitions filed and/or of the order thereon and of other proceedings in the matter before the Committee.
11. (1) If in any enquiry pending before the Disciplinary Committee, the complainant dies and there is no representative who is willing to conduct the case on his behalf, the Disciplinary Committee may, having regard to the allegations made in the complaint and the evidence available, make a suitable order either to proceed with the enquiry or to drop it.
(2) (a) In the case of an enquiry against only one advocate, on his death the Disciplinary Committee shall record the fact of such death and drop the proceedings. (b) Where the enquiry is against more than one advocate, on the death of one of them, the Disciplinary Committee may continue the enquiry against the other advocate unless it decides otherwise.
(3) No Disciplinary enquiry shall be dropped solely by reason of its having been withdrawn, settled or otherwise compromised, or that the complainant does not want to proceed with the enquiry.
12. Unless otherwise permitted, counsel appearing before any of the Disciplinary Committees of the State Bar Council or Bar Council of India shall appear in court dress.
13. The Council may from time to time issue instructions on any of the matter provided for in these rules. 14. (1) The finding of the majority of the members of the Disciplinary Committee shall be the finding of the Committee. The reason given in support of the finding may be given in the form of a judgement, and in the case a difference of opinion, any member dissenting shall be entitled to record his dissent giving his own reason. It shall be competent for the Disciplinary Committee to award such costs as it thinks fit
(2) The Registrar of the Disciplinary Committee shall send free of charge to each of the parties in the proceedings, a certified copy of the final order or judgement as set out in Rule 36 in this Chapter.
(3) The date of an Order made by the Disciplinary Committee shall be the date on which the said Order is first received in the office of the Bar Council after it has been signed by all the members thereof. For the purpose of limitation the date of the Order shall be the date on which the contents of the Order duly signed as aforesaid are communicated to the parties affected thereby.
15. Save as otherwise directed by the Disciplinary Committee or the Chairman thereof, certified copies of the records of a case pending before the Disciplinary Committee may be granted to the parties or to their counsel on an application made in that behalf and on payment of the prescribed fee.
16. (1) The Secretary of a State Bar Council shall send to the Secretary of the Bar Council of India quarterly statements of the complaints received and the stage of the proceedings before the State Bar Council and Disciplinary Committees in such manner as may be specified from time to time.
(2) The Secretary of the Bar Council of India may however call for such further statements and particulars as he considers necessary.
17. (1) The Secretary of every State Bar Council shall furnish such particulars and send such statements as may be considered necessary by the Secretary of the Bar Council of India for purposes of Section 36B of the Act and send all the records of proceedings that stand transferred under the said Section.
(2) The date of receipt of the complaint or the date of the initiation of the proceedings at the instance of the State Bar Council shall be the date on which the State Bar Council refers the case for disposal to its Disciplinary Committee under Section 35 (1) .
(3) Whenever the records of proceedings are transferred under Section 36B of the Act to the Council, the requirements in Rule 9 (2) of this Chapter shall be followed by the Disciplinary Committee of the State Bar Council.
B. Withdrawal of Proceedings under Section 36 of the Act
18. (1) Where a State Bar Council makes a report referred to in Section 36 (2) of the Act, the Secretary of the State Bar Council shall send to the Secretary of the Bar Council of India all the records of the proceedings along with the report.
(2) An application by a person interested in the withdrawal of a proceeding referred to in Section 36 (2) of the Act shall be signed by him and it shall set out the necessary facts supported by an affidavit and accompanied by the fee prescribed.
(3) For making an order on an application of a party or otherwise under Section 36 (2) of the Act, the Disciplinary Committee of the Bar Council of India may :
(a) call for a report of the Disciplinary Committee seized of the proceedings; (b) issue notice to the respondent; (c) require the parties to file such statements as it considers necessary; (d) call for the records of the proceedings; and (e) examine any witnesses.
(4) In the proceedings before the Disciplinary Committee of Bar Council of the India under Section 36, unless otherwise directed, the parties may appear in person or by advocate who shall file a vakalatnama as provided for under Rule 6 (1) in this Chapter.
(5) On a consideration of the report of a State Bar Council or otherwise the Disciplinary Committee of the Bar Council of India shall pass such orders as it considers proper.
You may file complaint before the Bar Council for professional misconduct of the advocate, may initiate litigation for recovery of compensation for the losses suffered by you and also may launch criminal prosecution for the offence of cheating etc.
14 February 2010
The every body who is appointed any lawyer is duty boud to provide the necessary feedback to the lawyer in respect of the case and the lawyer is not bound to collect the evidences then proceed for the defence in the case if the person not provide sufficienct feedback and the lawyer taken the adjurnment for the arrangment of the materials is not amount the misconduct of the services rather the person who himself not supported the lawyer to contest the case.- K L Ojha, Adv. JHC-09431902920.
14 February 2010
Thank you all. but sir/s i wnat to know that can we file a complaint before the consumer forum? and any prior notice required for the same or not? answer me please>
14 February 2010
14 February 2010
The relationship between an advocate and his client is in no way comparable to the relationship of doctor and patient, the services rendered by lawyers would not come within the ambit of the Consumer Protection Act and, therefore, consumers had no right to file cases against lawyers before consumer courts. Therefore, lawyers were not liable under the CP Act for deficient or negligent service
19 February 2010
I am not agree with ajitabh. The lawyers are also liable for the deficiecy in service. It is the duty of lawyer to see that the proper remedy available under the law is offered to the client. His failure in perfoming duty amounts to deficiecy in service.