When Does Negligence By Advocate Amount To Professional Misconduct?

To err is human. Even a well qualified, experienced professional is prone to commit occasional mistakes or errors of judgment.Do all cases of professional negligence amount to professional misconduct? Such a harsh standard will have a freezing effect on abilities of professionals, making them insecure and fearful. At the same time, too lax a rule will lead to dip in standards and accountability, affecting the rights of clients. Therefore, the Courts have adopted a balanced approach in this regard.To determine whether a professional has been negligent or not, she has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which she practices (See : Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1)A professional may be held liable for negligence on one of the two findings :either she was not possessed of the requisite skill which she professed to have possessed, or, she did not exercise, with reasonable competence in the given case, the skill which she did possess (See : CBI v K Narayana Rao (2012) 9 SCC 512)Negligence should be coupled with moral turpitude or delinquency to be misconduct The Constitution Bench of Supreme Court in the case In the matter of 'P' an Advocate AIR 1963 SC 1313, drew a distinction between 'negligence' and 'gross negligence'.The key takeaways from that case, where the Court was dealing with the alleged misconduct on the part of an Advocate on Record, are :Error of judgment cannot be completely eliminated in all human affairs.Mere negligence will not by itself mean that the advocate has committed 'professional misconduct'.For negligence to become 'misconduct' it must be involve moral turpitude or delinquency.The expression 'moral turpitude or delinquency' must receive a wide construction.Wherever the conduct of the Advocate is contrary to honesty, or opposed to good morals or is unethical, it can be held to involve moral turpitude.A willful and callous disregard for the interests of client may, in a proper case, be characterised as conduct unbefitting an Advocate. Improper legal advice not always misconductIn P D Khandekar v Bar Council of Maharashtra and Goa AIR 1984 SC 110, the Supreme Court was dealing with the challenge against punishment imposed on two advocates on findings of misconduct.They were alleged to have given improper legal advice in two cases. In one case, they allegedly advised a man and woman that their remarriage was possible by merely affirming in an affidavit they they had divorced their respective spouses. In another case, a woman acted upon their alleged advise that a gift of immovable property can be done by way of an affidavit. While deciding the matter, the apex court observed : There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.The Court agreed with the factual findings of the Disciplinary Committee that the advocates had given improper legal advice. However, that by itself will not support the charge of misconduct, as there was no finding that they acted with moral turpitude, added the Court."It appears to us that there was abundant evidence upon which the Disciplinary Committee could find the appellant and Agavane guilty of giving wrong legal advice, but there is considerable doubt whether upon such evidence the charge of professional misconduct can be supported. In the instant case, it is not at all certain that it can be said with strict accuracy that the appellant was guilty of moral turpitude or that there was any moral delinquency an his part", observed the top court while setting aside the penaltyMere negligence not professional misconductIn a case, a client entrusted with his advocate a dishonoured cheque for filing a complaint under Section 138 of the NI Act. The advocate thought it was better to file a complaint for cheating under Section 420 IPC, and therefore filed a petition before Magistrate under Section 156(3) CrPC.The client approached the Bar Council stating that the advocate failed to file complaint under NI Act and did not return the cheque to him. The advocate said that he had returned the cheque and he thought that Section 420 IPC complaint was a better legal course than NI Act. The Disciplinary Committee of the Bar Council held the advocate to be guilty of misconduct. It observed that the advocate should have obtained acknowledgment receipt from the client if he had returned the cheque.Setting aside the findings of the Disciplinary Committee, the Supreme Court said that the act of the advocate cannot be termed as "gross negligence"."the act of the present appellant cannot be treated to be in the realm of gross negligence. It would be only one of negligence. The...

When Does Negligence By Advocate Amount To Professional Misconduct?

Manu Sebastian

"Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct"

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